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2012 DIGILAW 464 (HP)

State Of Himachal Pradesh v. Rajesh Dhiman

2012-08-28

DEEPAK GUPTA, RAJIV SHARMA

body2012
JUDGMENT : Rajiv Sharma, J. This appeal by the State is directed against the judgment dated 28.12.2002, passed by the learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr, H.P. in NDPS Case No. 03 of 2002, whereby the respondents, who were charged with and tried for offence punishable u/s 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, have been acquitted. Case of the prosecution, in a nutshell, is that on 09.01.2002, ASI Purshottam Dutt (PW-8), Constable Sunder Singh (PW-1), Constable Bhup Singh (PW-2) and Sh. Bhopal Singh (PW-7) went to Shamshar for traffic checking. At about 1:00 p.m., a motorcycle came from Kandughat side. The motorcycle was not bearing any registration number. The motorcycle was driven by Gulshan Kumar and pillion rider was Rajesh Dhiman. The pillion rider of the motorcycle was carrying a bag on his back. The motorcycle was signaled to stop. The documents of the motorcycle were demanded. The accused became frightened. In the meantime, a Maruti Van bearing registration number HP-02-6276 came from Ani side, which was also stopped. Karam Chand (PW-3) and Shiv Ram were traveling in the Van. They were also associated in the investigation of the case. The accused were asked whether they intended to be searched before the Magistrate or Gazetted Officer or present police officials. Both the accused told that they intended to be searched before the police officials present on the spot. Consent memo Ex. PW-8/A was prepared. The police officials have also given their personal search to the independent witnesses. Thereafter, the bag was searched in the presence of independent witnesses. In the bag, two polythene bags were found, in which, charas was kept in the shape of balls, sticks and chapattis. PW-7, Constable Bhopal Singh was directed to bring the weighing scale. The charas weighed 3 Kg. 100 grams. Three samples of charas 25 grams each were taken out for the purpose of sample. The remaining bulk of charas was sealed in a parcel with seal impression 'H'. Six seal impressions were fixed upon the parcels. The sample parcels were also sealed with three seals of impression 'H'. The memo Ex. PW-1/A was prepared and the seal after use was handed over to PW-3, Karam Chand. The NCB form in triplicate was prepared. The site plan, Ex. PW-8/D was also prepared by the Investigating Officer. Six seal impressions were fixed upon the parcels. The sample parcels were also sealed with three seals of impression 'H'. The memo Ex. PW-1/A was prepared and the seal after use was handed over to PW-3, Karam Chand. The NCB form in triplicate was prepared. The site plan, Ex. PW-8/D was also prepared by the Investigating Officer. The reasons of arrest were informed to the accused persons vide document Ex. PW-8/E. The personal search of the accused was conducted vide memos Ex. PW-8/F and Ex. PW-8/ G. Thereafter, a rukka, Ex. PW-2/A was prepared and the same was sent to the Police Station through PW-2, Constable Bhup Singh. A special report Ex. PW-6/A was also sent on the next day by the Investigating Officer. The NCB form in triplicate was also handed over to SHO, Police Station, Ani. The case property was re-sealed by S.H.O., Police Station, Ani. The samples were also sent for chemical analysis to Kandaghat. The report of the Chemical Analyst is Ex. PW-10/B. Thereafter, the challan was put up. 2. The prosecution has examined as many as ten witnesses. The accused were also examined u/s 313 of the Criminal Procedure Code. They pleaded not guilty and claimed trial. The learned trial Court has acquitted the respondents. 3. We have heard the learned Counsel for the parties and gone through the records carefully. 4. PW-1, Constable Sunder Singh was also a member of the police party which went to place Shamshar for traffic checking alongwith ASI Purshottam Dutt (PW-8), Constable Bhup Singh (PW-2) and Sh. Bhopal Singh (PW-7). At 1:00 a.m., a motorcycle came from Kandughat side, which was signaled to stop. It was driven by Gulshan Kumar and the pillion rider was Rajesh Dhiman. An another vehicle came from Ani side. This vehicle was also stopped. The persons who were traveling in the Van were also associated in the investigation. The accused were asked whether they intend be searched before the Magistrate or Gazetted Officer or police officials present on the spot. Accused told that they intend to be searched by the police officials. The consent memo Ex. PW-8/A was prepared. The bag was searched. It contained two polythene bags, in which charas was kept. The charas was kept in the shapes of balls, sticks and chapattis. The scales were brought. The charas was weighed on the spot. It weighed 3 kg. 100 grams. The consent memo Ex. PW-8/A was prepared. The bag was searched. It contained two polythene bags, in which charas was kept. The charas was kept in the shapes of balls, sticks and chapattis. The scales were brought. The charas was weighed on the spot. It weighed 3 kg. 100 grams. Three samples of charas 25 grams each were taken out for sample purpose and were sealed with seal impression 'H'. The remaining bulk of charas was also sealed in a separate parcel with seal impression 'H'. The seizure memo of charas Ex. PW-1/A was prepared. The seal after use was handed over to Karam Chand. 5. PW-2, Constable Bhup Singh has corroborated the statement of PW-1, Constable Sunder Singh. PW-3, Sh. Karam Chand was declared hostile. According to PW-4, Sh. Jia Lal, he received rukka, Ex. PW-2/A in the Police Station, on the basis of which, F.I.R. Ex. PW-4/A was registered. SHO Mohinder handed over to him 4 parcels of charas which were sealed with seal impression 'T'. The N.C.B. form in triplicate was also handed over to him. On 11.01.2002, he sent the parcels of sample alongwith seal of impression and N.C.B. in the office of Chemical Analyst, Kandaghat through Constable Tej Ram (PW-9) vide R.C. No. 7/2002. He has also produced the extract of malkhana register, Ex. PW-4/B. 6. According to PW-6, a special report was received in the office on 10.01.2002 at 5:00 p.m. The special report is Ex. PW-6/A. PW-7, Sh. Bhopal Singh was also a member of the team, which has gone to Shamshar for traffic checking. According to him also, at about 1:00 p.m., a motorcycle came from Jalori side. The motorcycle was not bearing any registration number. It was driven by Gulshan Kumar. Co-accused Rajesh Dhiman was the pillion rider. He was carrying a bag on his back. After 5-7 minutes, a taxi came from Ani side. It was also stopped. The accused were asked whether they intend to be searched before the Magistrate or Gazetted Officer. The accused intended to be searched by the police officials present on the spot and to this effect they gave the consent. Police officials have also given their search to Karam Chand and Shiv Ram. The bag was searched. It contained polythene bags. In the bags, charas was found in the shapes of balls, sticks and chapatis. He brought the weighing scale. The contraband was weighed. Police officials have also given their search to Karam Chand and Shiv Ram. The bag was searched. It contained polythene bags. In the bags, charas was found in the shapes of balls, sticks and chapatis. He brought the weighing scale. The contraband was weighed. It weighed 3 kg. 100 grams. Thereafter, the samples as per the procedure were drawn. 7. PW-8, ASI Purshottam Dutt was also the member of the team, which had gone to Shamshar for traffic checking. He has corroborated the statements of PW-1 and PW-2. According to him also, the motorcycle came from Kandughat side. It was driven by Gulshan Rana and Rajesh Dhiman was the pillion rider. The motorcycle was stopped. He asked the accused either to be searched before the Magistrate or Gazetted Officer. The accused told that they intend to be searched before the police officials. The consent memo Ex. PW-8/A was prepared. He has given the search of other police officials and he was also personally searched by the independent witnesses. A private taxi came from Ani side bearing registration No. HP-02-6276. It was also stopped. Karam Chand and Shiv Ram were traveling in the taxi and they were also associated as members of raiding party. The bag was searched. It contained two polythene bags, in which charas was kept. Constable Bhopal Singh (PW-7) was directed to bring the weighing scale. The contraband weighed 3 kg. 100 grams and thereafter all the codal formalities were completed, including the preparation of seizure memos and preparation of site plan etc. He prepared the rukka, Ex. PW-2/A. He also prepared special report Ex. PW-6/A. He has presented the accused and case property before S.H.O., Police Station, Ani. He also handed over N.C.B. form in triplicate to S.H.O., Police Station, Ani. The case property was re-sealed by S.H.O. Police Station, Ani. 8. PW-9, Tej Ram has deposed that on 11.01.2002, one parcel was given to him by MHC Jia Lal. He deposited the parcel in the office of the Chemical Analyst, Kandaghat on 14.01.2002. In his cross-examination, he has stated that on 12th January and 13th January, 2002, it was 2nd Saturday and Sunday and the parcel remained in Police Station, Kandaghat. 9. PW-10, SI Mohinder Kumar has deposed that four parcels were handed over to him with seal impression 'H' at about 8:20 p.m. He resealed the parcels with his own seal. In his cross-examination, he has stated that on 12th January and 13th January, 2002, it was 2nd Saturday and Sunday and the parcel remained in Police Station, Kandaghat. 9. PW-10, SI Mohinder Kumar has deposed that four parcels were handed over to him with seal impression 'H' at about 8:20 p.m. He resealed the parcels with his own seal. He also filled in N.C.B. form. He handed over the parcels alongwith specimen seal impression and NCB form to MHC Jia Lal (PW-4). He also obtained seal impression on plain cloth Ex. PW-10/A. He prepared the challan and presented in the Court. He also brought the report of Chemical Analyst Ex. PW-10/B. 10. Learned trial Court has acquitted the respondents on the ground that PW-3, Sh. Karam Chand was declared hostile and one Sh. Shiv Ram has not been examined. According to the learned trial Court, the consent memo Ex. PW-8/A was not duly proved. According to the learned trial Court the conviction could not be recorded merely on the basis of the statements of official witnesses and the independent witnesses from the locality were not associated. 11. We have gone through the statements of prosecution witnesses and have perused the record very carefully. The statements of official witnesses are trustworthy and reliable and inspire confidence. It is well settled by now that the conviction can be recorded merely on the basis of statement of official witness, if it inspires confidence. 12. There are no contradictions in the statements of PW-1, Constable Sunder Singh, PW-2, Constable Bhup Singh, PW-4, Sh. Jia Lal, PW-7, Sh. Bhopal Singh, PW-8, ASI Purshottam Dutt, PW-9, Tej Ram and PW-10, SI Mohinder Kumar. 13. PW-1, Constable Sunder Singh, PW-7, Sh. Bhopal Singh and PW-8, ASI Purshottam Dutt have deposed categorically the manner in which the motorcycle was intercepted and the contraband was recovered from the accused. The NCB form was filled in triplicate. The samples were sealed in accordance with law. Thereafter, the parcels were handed over to PW-10, SI Mohinder Kumar, who sealed the same with his personal seal. Rukka was duly received in the Police Station, on the basis of which, F.I.R. Ex. PW-4/A was recorded. SHO Mohinder Kumar has handed four parcels of charas which were sealed with seal impression 'T' to PW-4, Sh. Jia Lal. Thereafter, the parcels were handed over to PW-10, SI Mohinder Kumar, who sealed the same with his personal seal. Rukka was duly received in the Police Station, on the basis of which, F.I.R. Ex. PW-4/A was recorded. SHO Mohinder Kumar has handed four parcels of charas which were sealed with seal impression 'T' to PW-4, Sh. Jia Lal. He has sent the sample of parcels along with seal of impression and NCB form to the office of Chemical Analyst, Kandaghat through Constable Tej Ram (PW-9). PW-4, Sh. Jia Lal has also proved malkhana register Ex. PW-4/B. PW-9, Tej Ram has deposed that he has deposited the parcels in the office of Chemical Analyst, Kandaghat. The samples were sent to Chemical Analyst, Kandaghat. According to the report of Chemical Analyst, Kandaghat, Ex. PW-10/B, the seized material was charas. The special report has been prepared. 14. Mr. Jagdish Vats, learned Counsel for the respondents has also argued that the sample was kept in the Police Station and the possibility of tampering cannot be ruled out. However, it is evident from the statement of PW-9 that though the sample has remained in Police Station Kandaghat, but it was not tampered with, since the same was received intact in the office of Chemical Analyst, Kandaghat. Mr. Jagdish Vats, learned Counsel has also argued that the police has not recorded the purpose of their visit in the rapat roznamcha nor it has been proved on record. It has come in the statement of PW-1, Constable Sunder Singh that the departure report was recorded in the Police Station. 15. It is always desirable that the independent witnesses are associated at the time of search, more particularly, in cases under the Narcotic Drugs and Psychotropic Substances Act, 1985. However, there may be circumstances, in which it may be difficult due to geographical condition to associate independent witnesses. 16. In this case, PW-3, Sh. Karam Chand, an independent witness has been declared hostile and one Shri Shiv Ram has not been produced by the prosecution. However, it has come in the statement of PW-8, ASI Purshottam Dutt, Investigating Officer that the witnesses of the locality were not available. He tried to locate independent witnesses from the locality. He inquired from Shri Shiv Ram and PW-3, Karam Chand about respectable residents of the locality. 17. However, it has come in the statement of PW-8, ASI Purshottam Dutt, Investigating Officer that the witnesses of the locality were not available. He tried to locate independent witnesses from the locality. He inquired from Shri Shiv Ram and PW-3, Karam Chand about respectable residents of the locality. 17. The statements of official witnesses can be relied upon, if it inspire confidence, even though independent witnesses have not been produced and not supported the case of the prosecution. In this case, the chain is complete from the seizure to sending the sample to Chemical Analyst at Kandaghat. The learned trial Court has committed serious error while disbelieving the statements of official witnesses. It is not the case of the accused persons that official witnesses have inimically deposed against them. It is not the case of the prosecution that the police has not tried to associate independent witnesses from the locality. 18. Their Lordships of the Hon'ble Supreme Court in Ravindran @ John Vs. The Superintendent of Customs, (2007) 6 SCC 410 , have held that non-examination of independent witnesses to search is not fatal to prosecution case, but where such witness is not examined in the course of trial, the evidence of official witnesses may be approached with suspicion and corroboration may be insisted upon. Their Lordships have held as under: 12. Learned Counsel for the appellant argued that the two independent witnesses in whose presence he had been searched were not examined at the trial. Reliance was placed on an observation contained in paragraph 28 of the report in The State of West Bengal and Others Vs. Babu Chakraborty, (2004) 12 SCC 201 , State of West Bengal and others v. Babu Chakraborthy. In the instant case it is not disputed that two independent witnesses were associated when the search was conducted. The search was, therefore, conducted in accordance with law. But it is argued that failure to examine the two witnesses is fatal to the case of the prosecution. In our view, this is not the correct legal position. Even where independent evidence is not examined in the course of the trial the effect is that the evidence of the official witnesses may be approached with suspicion and the Court may insist on corroboration of their evidence. In Koluttumottil Razak Vs. In our view, this is not the correct legal position. Even where independent evidence is not examined in the course of the trial the effect is that the evidence of the official witnesses may be approached with suspicion and the Court may insist on corroboration of their evidence. In Koluttumottil Razak Vs. State of Kerala, (2000) 4 SCC 465 , this Court observed:- In the present case, unfortunately, apart from the evidence of the police officers there is absolutely no independent evidence to ensure confidence in our mind that the search was in fact conducted by PW-1 as he has claimed. As his evidence is required to be approached with suspicion due to violation of Section 42 of the Act we may require corroboration from independent sources that is lacking in this case. 12. In M. Prabhulal Vs. The Assistant Director, Directorate of Revenue Intelligence, (2003) 8 SCC 449 , a similar question was raised in the context of the provisions of the NDPS Act. This Court held: Next, the learned Counsel contends that the independent witnesses of the recovery of the contraband having not been examined and only police witnesses having been examined, the recovery becomes doubtful. Reliance is placed upon the decision in Pradeep Narayan Madgaonkar v. State of Maharashtra. In the decision relied upon while observing that prudence dictates that evidence of police witnesses needs to be subjected to strict scrutiny, it was also observed that their evidence cannot be discarded merely on the ground that they belong to the police force and are either interested in the investigating or prosecuting agency, but as far as possible, corroboration of their evidence in material particulars should be sought. 13. In the instant case we find that the Courts below have critically scrutinized the evidence of the prosecution witnesses applying the rule of caution and we find no reason to disagree with their findings. 19. Their Lordships of the Hon'ble Supreme Court in Girja Prasad (Dead) by LRs. Vs. State of Madhya Pradesh, (2007) 7 SCC 625 , have held that the conviction can be recorded solely on the testimony of police officials. However, there is a word of caution that it has to be after careful scrutiny of their evidence. Their Lordships have held as under: 25. In our judgment, the above proposition does not lay down correct law on the point. However, there is a word of caution that it has to be after careful scrutiny of their evidence. Their Lordships have held as under: 25. In our judgment, the above proposition does not lay down correct law on the point. It is well-settled that credibility of witness has to be tested on the touchstone of truthfulness and trustworthiness. It is quite possible that in a given case, a Court of Law may not base conviction solely on the evidence of Complainant or a Police Official but it is not the law that police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption that every person acts honestly applies as much in favour of a Police Official as any other person. No infirmity attaches to the testimony of Police Officials merely because they belong to Police Force. There is no rule of law which lays down that no conviction can be recorded on the testimony of Police Officials even if such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. But, if the Court is convinced that what was stated by a witness has a ring of truth, conviction can be based on such evidence. In the instant case also, we have critically scrutinized the statements of official witnesses, i.e., PW-1, Constable Sunder Singh, PW-2, Constable Bhup Singh, PW-4, Jia Lal, PW-7, Sh. Bhopal Singh and PW-8, ASI Purshottam Dutt very carefully and the same are to be believed, though PW-3, Sh. Karam Chand was declared hostile and independent witnesses were not associated. 20. Their Lordships of the Hon'ble Supreme Court in Nishan Singh Vs. State of Punjab, AIR 2008 SC 1661 , have held that non examination of independent witness by itself is not sufficient to disregard the statements of the prosecution witnesses totally. Their Lordships have held as under: 41. So far as the case of Rachhpal Singh is concerned, it may be true that no independent witness was examined. But that by itself is not sufficient to disregard the statements of the prosecution witnesses totally. 21. Their Lordships of the Hon'ble Supreme Court in Ajmer Singh Vs. Their Lordships have held as under: 41. So far as the case of Rachhpal Singh is concerned, it may be true that no independent witness was examined. But that by itself is not sufficient to disregard the statements of the prosecution witnesses totally. 21. Their Lordships of the Hon'ble Supreme Court in Ajmer Singh Vs. State of Haryana, (2010) 3 SCC 746 , in a case registered under the Narcotic Drugs and Psychotropic Substances Act, 1985 have held that testimony of official witnesses, even in absence of its corroboration by independent evidence can form basis of conviction if Court is satisfied, on careful and cautious appreciation of evidence, that it is otherwise believable. Their Lordships have held as under; 19. The learned Counsel for the appellant has submitted that the evidence of the official witness cannot be relied upon as their testimony, has not been corroborated by any independent witness. We are unable to agree with the said submission of the learned Counsel. It is clear from the testimony of the prosecution witnesses PW-3 Paramjit Singh Ahalawat, D.S.P., Pehowa, PW-4 Raja Ram, Head Constable and PW-5 Maya Ram, which is of record, that efforts were made by the investigating party to include independent witness at the time of recovery, but none was willing. It is true that a charge under the Act is serious and carries onerous consequences. The minimum sentence prescribed under the Act is imprisonment of 10 years and fine. In this situation, it is normally expected that there should be independent evidence to support the case of the prosecution. However, it is not an inviolable rule. Therefore, in the peculiar circumstances of this case, we are satisfied that it would be travesty of justice, if the appellant is acquitted merely because no independent witness has been produced. 21. In the present case, both the trial Court and the High Court by applying recognized principle of evaluation of evidence of witnesses has rightly come to the conclusion that the appellant was arrested and Charas was recovered from the possession of the appellant for which he had no licence. We find no good reason to differ from that finding. 22. The Apex Court again in Jarnail Singh Vs. We find no good reason to differ from that finding. 22. The Apex Court again in Jarnail Singh Vs. State of Punjab, (2011) 1 SCC(Cri) 1191, in a case registered under the Narcotic Drugs and Psychotropic Substances Act, 1985 have held that merely because prosecution did not examine any independent witness, would not necessarily lead to conclusion that accused was falsely implicated. Their Lordships have held as under: 11. The first submission of Mr. Ujjal Singh, learned Counsel, is that the appellant has been falsely implicated. We are unable to accept this submission. Merely because the prosecution has not examined any independent witness, would not necessarily lead to the conclusion that the appellant has been falsely implicated. It was clearly a case where the police personnel had noticed the odd behaviour of the appellant when he was walking towards them on a path which led to village Mirzapur. It was the display of hesitation by the appellant on sighting the police party that Satpal Singh (PW5) became suspicious. On seeing the police personnel, the appellant tried to run away from the scene. It was not a case where the prosecution has claimed that the appellant was apprehended on the basis of any earlier information having been given by any secret informer. It was also not a case of trap. In such circumstances, it would not be possible to hold that the appellant has been falsely implicated. 12. The prosecution has offered a plausible explanation with regard to non-joining of the independent witnesses. It was clearly stated by PW5 that the path on which the appellant was apprehended was not frequently used by the public. In fact, efforts were made to bring a member of Panchayat or Sarpanch of the village. However, the Head Constable Baldev Singh who had been sent, reported that none of the villagers were prepared to join as independent witnesses. This reluctance on the part of the villagers is neither strange nor unbelievable. Generally, people belonging to the same village would not unnecessarily want to create bad relations/enmity with any other villager. Especially when such a person would be feeling insecure, having been accused of committing a crime. 23. Their Lordships of the Hon'ble Supreme Court in Rameshbhai Mohanbhai Koli and Others Vs. Generally, people belonging to the same village would not unnecessarily want to create bad relations/enmity with any other villager. Especially when such a person would be feeling insecure, having been accused of committing a crime. 23. Their Lordships of the Hon'ble Supreme Court in Rameshbhai Mohanbhai Koli and Others Vs. State of Gujarat, (2011) 11 SCC 111 , have held that merely because panch witnesses turned hostile, is no ground to reject evidence, if the same is based on testimony of investigating officer alone. Their Lordships have held as under: 32. An argument was advanced about reliance based on the evidence of investigating officer. This Court in State of U.P. Vs. Krishna Gopal and Another, (1988) 4 SCC 302 , has held that Courts of law have to judge the evidence before them by applying the well recognized test of basic human probabilities. Prima facie, public servants must be presumed to act honestly and conscientiously and their evidence has to be assessed on its intrinsic worth and cannot be discarded merely on the ground that being public servants they are interested in the success of their case. [vide State of Kerala Vs. M.M. Mathew and Another, (1978) 4 SCC 65 . 35. This Court has held in large number of cases that merely because the panch-witnesses have turned hostile is no ground to reject the evidence if the same is based on the testimony of the Investigating Officer alone. In the instant case, it is not the case of defence that the testimony of Investigating Officer suffer from any infirmity or doubt. [Vide Modan Singh's case (supra) Krishna Gopal's case (supra) and Anter Singh's case (supra)]. 24. Their Lordships of the Hon'ble Supreme Court in C. Ronald and Another Vs. State, U.T. of Andaman and Nicobar Islands, (2011) 9 SCALE 59 , have held that there is no principle of law that a statement mad in Court by police has to be disbelieved. Their Lordships have held as under: 14. There is no principle of law that a statement made in Court by a police personnel has to be disbelieved. It may or may not be believed. It is not that all policemen will tell lies. There are good and bud people in all walks of life. There are good and bad police men as well. We cannot assume that every statement of a policeman is necessarily false. It may or may not be believed. It is not that all policemen will tell lies. There are good and bud people in all walks of life. There are good and bad police men as well. We cannot assume that every statement of a policeman is necessarily false. In the present case, there is nothing to show that the policemen were making false statements in the Court. They had no enmity with the accused. 15. Mr. Shanti Bhushan submitted that it is possible that these policemen demanded some money from the accused which they did not give and hence they were falsely implicated. This case was not set up by the accused at any point of time and no such suggestion was even made in the cross examination. In view of the above discussion, the appeal is allowed. The judgment of the learned trial Court, dated 28.12.2002, is set aside and we convict both the accused persons for having committed an offence punishable u/s 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985. Bail bonds furnished by the accused are cancelled. They now be produced before us on 3rd October, 2012, for being heard on the issue of quantum of sentence. The Registry to take necessary follow up action.