Research › Search › Judgment

Himachal Pradesh High Court · body

2012 DIGILAW 918 (HP)

Sunder Singh v. State of Himachal Pradesh

2012-12-03

SURINDER SINGH

body2012
Judgment Surinder Singh, J. The present appeal is directed by the appellant-accused against judgment of conviction passed by the learned trial Court in Sessions Trial No. 8 of 2011, decided on 26.04.2012, for the offence punishable under Section 20 (b) (ii) (B) of the Narcotic Drugs and Psychotropic Substances Act, 1985, in short the “Act”, for allegedly keeping in his possession approximately 110 grams of ‘Charas’ based upon the percentage of cannabis-resin, recovered in the form of resin and sentenced to undergo simple imprisonment for a period of one year and to pay a fine of Rs.10,000/- and in default of payment of fine, to further undergo simple imprisonment for a period of three months. The benefit of Section 428 of the Code of Criminal Procedure was also accorded. A. PROSECUTION CASE 2. Precisely, the case of the prosecution is that on 28.09.2010, the police party headed by PW-8 Head Constable Surinder Singh, was returning after conducting investigation in a case. They spotted the appellant, hereinafter referred to as “the accused”, 200 meters ahead of Kainchi Mor towards Pandoh (District Mandi) coming through footpath emerging into the National Highway. The accused was having a carry-bag Ext. P-2 in his hand. On seeing police, he got frightened and tried to escape. However, on getting suspicious he was apprehended by the police. His identity was asked. It was a lonely and deserted place. No independent witness was available. As such, PW-1 Constables Sanjay Kumar and PW-2 Parma Nand were associated as the witnesses. (ii) On checking carry-bag Ext. P-2 in the presence of the aforesaid witnesses, PW-8 Head Constable Surinder Singh recovered a polythene bag containing 400 grams of stuff, which was in the shape of small sticks. It was emanating the smell of ‘Charas’. The entire recovered stuff was made into one parcel and sealed with six seals of English letter ‘T’. The facsimile of the seal was also taken on a piece of cloth Ext. PW-1/A at three places. (iii) NCB forms in triplicate were filled in on the spot, out of which one is Ext. PW-5/B. The facsimile of the seal was also affixed on the NCB form aforesaid. The seal after use was handed over to PW-1 Constable Sanjay Kumar. The case property was taken into possession vide seizure memo Ext. PW-1/B. (iv) Rukka Ext. (iii) NCB forms in triplicate were filled in on the spot, out of which one is Ext. PW-5/B. The facsimile of the seal was also affixed on the NCB form aforesaid. The seal after use was handed over to PW-1 Constable Sanjay Kumar. The case property was taken into possession vide seizure memo Ext. PW-1/B. (iv) Rukka Ext. PW-8/A was prepared and handed over to PW-2 Constable Parma Nand for registration of the case, which culminated into FIR Ext. PW-5/A. (v) The accused was arrested. The grounds of arrest were intimated to him in writing. (vi) The recovered stuff was produced before PW-5 Inspector Surender Pal. The accused was put into the lockup. The case property was re-sealed with seal impression ‘C’. The facsimile of seal was taken on the NCB forms and also on the back side of piece of cloth Ext. PW-1/A. Its relevant columns were filled in. He prepared the re-sealing memo Ext. PW-5/C. (vii) PW-5 Inspector Surender Pal handed over the re-sealed parcel, NCB forms and sample of seals to PW-7 MHC Anil Kumar for its deposit in the Malkhana, to which he did. On 29.09.2010, the recovered stuff was sent through PW-9 Constable Jiwa Nand for its deposit in the laboratory for examination vide R.C. Ext. P.W. 7/B, which he deposited on the same day and after getting receipt on the R.C., it was handed over to MHC, aforesaid. (viii) Special report regarding arrest and seizure was sent to the official superior within the stipulated time. B. PROCEEDINGS BEFORE THE LEARNED TRIAL COURT. 3. After completing investigation, the challan was presented in the Court for trial of the accused. The accused was accordingly charge-sheeted for the offence aforesaid. He pleaded not guilty and claimed trial. 4. To prove its case, the prosecution examined nine witnesses. The accused was also examined under Section 313 of the Code of Criminal Procedure. The circumstances, which were found attendant upon the accused from the evidence on record, were put to him, to which he denied. However, he took up the stand that he was passenger alongwith Lal Singh in a private bus and the police had alighted them from the bus. The circumstances, which were found attendant upon the accused from the evidence on record, were put to him, to which he denied. However, he took up the stand that he was passenger alongwith Lal Singh in a private bus and the police had alighted them from the bus. Nothing more than that has been stated by him in his statement aforesaid, but however, the perusal of the cross-examination of the witnesses reveals that the accused had tried to project that the bag in question was found abandoned at the said place and the case was foisted upon him. When called upon to enter upon his evidence, the accused did not lead any evidence in defence. At the end of the trial, he was convicted and sentenced, as aforesaid. C. SUBMISSIONS BEFORE THIS COURT IN APPEAL. 5. Shri H.S. Rangra, the learned Counsel for the accused vehemently argued that there are contradictions with respect to the time and place of the alleged incident and also that PW-9 Constable Jiwa Nand admitted to have taken the parcel which was having the seal impression ‘Y’ instated of seal impression ‘T’ to the laboratory, which fact was also admitted by the PW-7 MHC Anil Kumar. Therefore, the report of the analysis is not connected with the alleged recovery. 6. Shri P.M. Negi, learned Deputy Advocate General, while supporting the impugned judgment of conviction and sentence submitted that the contradictions aforesaid are not material in nature. If the statements of PW-9 Constable Jiwa Nand and PW-7 MHC Anil Kumar are read together, in the light of the documents on record, it would reveal that it was the seized parcel, which was taken by the said Constable to the laboratory for its examination. He further pointed out that the seal taken on a piece of cloth Ext. PW-1/A also gives the impression of English letter ‘Y’ instead of ‘T’, but according to him, it was the only parcel which was taken by the said Constable for its analysis to the laboratory and during the trial, it was identified to be the same as Ext. P-1, which was not disputed at all. Further, the Investigating Officer stated that seal ‘Y’ was an inadvertent mistake in the statements of PW-9 Constable Jiwa Nand and PW-7 MHC Anil Kumar which were recovered after about a month. D. FINDINGS 7. P-1, which was not disputed at all. Further, the Investigating Officer stated that seal ‘Y’ was an inadvertent mistake in the statements of PW-9 Constable Jiwa Nand and PW-7 MHC Anil Kumar which were recovered after about a month. D. FINDINGS 7. I have given my thoughtful consideration to the rival contentions of the parties and have reappraised the evidence on record very closely and cautiously. 8. PW-8 Head Constable Surender Singh is the Investigating Officer. He supported the case of the prosecution, as projected, mutatis mutandis. He categorically stated that the recovered stuff was made into one parcel and sealed with seal impression ‘T’. Its facsimile was also taken on a piece of cloth Ext. PW-1/A as well as on the NCB form. This fact also stands established from the statement of PW-5 Inspector Surender Pal, before whom the case property and the NCB form were produced for resealing alongwith the seal impressions used. The Inspector/SHO Surender Pal testified during the trial that he had received all these articles alongwith the parcel and sample seals. Thereafter, he re-sealed it with seal impression ‘C’, the sample whereof was taken on the reverse side of Ext. PW-1/A and also on the NCB form and thereafter it was deposited with PW-7 MHC Anil Kumar. Its entry was made by him (PW-7) in the Malkhana register. The entry, so made, in the Malkhana register is proved it by its abstract Ext. PW-4/A. Further, the whole parcel, the NCB forms, copy of the FIR etc. were sent vide R.C. No. 167/10, copy of which is Ext. PW-1/B, through Constable Jiwa Nand for its deposit and analysis in the State Forensic Science Laboratory, Junga. He further stated in the cross-examination that in his statement under Section 161 of the Code of Criminal Procedure, the seal impression ‘Y’ instated of ‘T’, was wrongly mentioned; but in fact, the seal impression was ‘T’. Even, PW-9 Jiwa Nand stated that the sample parcels were having impressions of ‘Y’ and ‘C’ at six places. But, importantly, he had identified the parcel Ext. P-1 to be the same, to which he had taken to F.S.L., Junga for its examination, which fact has not been challenged in the cross-examination. His oral statement that it was also containing seal ‘Y’ goes contrary to the road certificate which cannot be said to be fatal in view of the documents aforesaid. P-1 to be the same, to which he had taken to F.S.L., Junga for its examination, which fact has not been challenged in the cross-examination. His oral statement that it was also containing seal ‘Y’ goes contrary to the road certificate which cannot be said to be fatal in view of the documents aforesaid. The copy of the road certificate Ext. PW-7/B placed and proved on record clearly mentions that PW-9 Constable Jiwa Nand was handed over the parcel, which was sealed with seal impressions of ‘T’ and ‘C’ at six places, which also accompanied sample seals/NCB forms etc. and the same were received in the laboratory as per the receipt overleaf. Further, the analysis report confirms this fact of receipt of the parcel as mentioned in analysis certificate Ext. PW-5/D. The description of the seal is clearly mentioned as ‘T’ and ‘C’ with respect to the parcel received through PW-9 Constable Jiwa Nand which was found intact and tallied with sample seals and facsimile on the NCB forms. After its analysis, it was returned to the concerned police station with the specimen seal of the Forensic Science Laboratory. The facsimile of the laboratory seal is on the left side of the report Ext. PW-5/D. Pertinently, when such parcel was produced and exhibited to PW-1 Constable Sanjay Kumar during the trial, the learned trial Court observed that it was having six impressions of seal ‘T’ and ‘C’ and three impressions of facsimile of the forensic science laboratory seal and certified it to be intact and legible. Thereafter, permission was accorded to open the parcel. When the parcel was opened, it was identified to be the same bag Ext. P-2 recovered from the accused and exhibited as Ext. P-1 which contained the stuff Ext. P-5. Even, PW-2 Constable Parma Nand also identified the aforesaid stuff having been recovered from the accused. 9. As already stated above, PW-9 Constable Jiwa Nand identified the same parcel Ext. P-1 during the trial, which was taken by him for its deposit to the laboratory. Therefore, his version that it was having seal impression ‘Y’ instead of ‘T’ is incorrect also for the reasons that his statement under Section 161 of the Code of Criminal Procedure was recorded after about a month of the said recovery and the three seal impressions taken on a piece of cloth Ext. Therefore, his version that it was having seal impression ‘Y’ instead of ‘T’ is incorrect also for the reasons that his statement under Section 161 of the Code of Criminal Procedure was recorded after about a month of the said recovery and the three seal impressions taken on a piece of cloth Ext. PW-1/A, one, on a cursory look, gives the impression of ‘Y’. Further, it stands clarified by the Investigating Officer that it was an inadvertent mistake. Therefore, for the above reasons, the case property stands fully identified and linked with the report of analysis. 10. Another contention of the learned Counsel for the accused is that there has been a contradiction with respect to the place and time of the alleged incident. Though, the Investigating Officer, PW-8 Head Constable Surinder Singh stated that the alleged recovery was effected at 3.00 p.m. from a place while the accused was apprehended on the National Highway (Kainchi Mor), whereas PW1 Constable Sanjay Kumar and PW-2 Constable Parma Nand stated that the accused was emerging from a short-cut 10/15 meters to the National Highway at 2.00 p.m. These contradictions are not material which could shake the foundation of the prosecution case, in any manner, thus ignorable, in view of the fact that the alleged recovery of the stuff stands proved from the accused. 11. Further, the learned Counsel for the accused confronted with the above situation also submitted that it has come in the evidence that the place of alleged incident is a National Highway and is a quite busy road. The police could have associated independent witnesses, which was not done. Therefore, the prosecution case becomes a suspect in view of the defence taken. 12. In my view, this contention is worth rejecting for the reason that the recovery was effected from an open place. It was not imperative to include the independent witnesses at the time of search and seizure. Secondly, non-inclusion of the independent witnesses, in such a situation, will not cast any doubt on the prosecution story as well, because the recovery stands proved by the statements of the official witnesses. The abrasions/contradictions here and there in the statements which are minor in character, do not go to the root of the case. 13. Secondly, non-inclusion of the independent witnesses, in such a situation, will not cast any doubt on the prosecution story as well, because the recovery stands proved by the statements of the official witnesses. The abrasions/contradictions here and there in the statements which are minor in character, do not go to the root of the case. 13. There is also no reason to implicate the accused in a false case and even not, remotely suggested to the Investigating Officer or the other witnesses to implicate him falsely nor he explained it in the statement of the accused recorded under Section 313 of the Code of Criminal Procedure. 14. Further, the learned Counsel for the accused also referred to the document Ext. PW-4/B and tried to impress that it was PW-3 Constable Ram Dass who had taken the special report to the Office of the Superintendent of Police in the present case along with another case of NDPS on the same day and time, which is not possible. As a matter of fact, special reports are taken within 48 hours of its recovery to the official superior and there is no harm in taking both these reports together to the office by the said Constable. Otherwise also, it has come in the evidence that on the same day, cousin of the accused was also held up in a similar case prior to the accused and a separate challan was presented against him. The second special report must be of that case. Therefore, this fact is also not very material to cast a doubt in the prosecution case. 15. Having examined the evidence on record from every angle, I do not find any illegality and perversity in the judgment passed by the learned trial Court, as such, the conviction and sentence passed by the learned trial Court requires no interference. 16. The appeal is without merit, hence dismissed. 17. The accused is hereby directed to surrender before the learned trial Court on 28th December, 2012, failing which, the learned trial Court shall take coercive steps to commit him to prison to serve out the remaining sentence.