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Himachal Pradesh High Court · body

2012 DIGILAW 926 (HP)

Charna Ram v. State of H. P.

2012-12-04

SURINDER SINGH

body2012
Judgment Surinder Singh, J. The appellant was held guilty for allegedly possessing 266.454 grams of charas in the recovered stuff of 786 grams as such he was convicted under Section 20 (b) (ii) (B) of Narcotic Drugs and Psychotropic Substances Act, 1985 in short “the Act’, and sentenced to undergo imprisonment for a period of two years and to pay a fine of Rs.20,000/- with default clause by giving him benefit of set-off under Section 428 of the Code of Criminal Procedure. Thus feeling aggrieved, the appellant, hereinafter referred to as ‘the accused’ has laid challenge in the present appeal. 2. The story, as spelt out by the prosecution witnesses, can be stated thus. On 6.3.2011 at about 4.30 p.m. PW7 Sub Inspector Paras Ram was heading a police patrol party on Dhaugi road. Its departure was recorded in the daily diary, copy whereof is Ext. PW3/A. Around 4.30 p.m. police noticed the accused coming from the side of village Sainj with a rucksack on his back. On noticing the police party, he tried to escape, which entertained suspicion, therefore, he was apprehended and his identity was asked. He was questioned but he could not give satisfactory reply. On seeing that the accused had got perplexed, S.I. Paras Ram suspected of contraband in his possession and joined PW6 HHC Ram Saran and constable Sohan Lal as witnesses, as the independent witnesses were not readily available and apprised the accused of his right to be searched either before the Magistrate or the Gazetted officer. However, the accused consented to be searched before the police party and he made endorsement in his own hand and signatures on the memo Ext. PW6/A. 3. Thereafter PW7 S.I. Paras Ram rendered himself to be searched by the accused but nothing incriminating was found. To this effect, memo Ext. PW6/B was prepared. Thereafter Paras Ram aforesaid conducted the search of the rucksack of the accused and found one black and white woolen shawl and recovered a packet which was in the folds of the shawl. It contained 800 grams stuff in the shape of sticks and balls. The whole stuff was re-packed in the same manner and made into a parcel the investigating officer affixed 8 seals of ‘A’ over it. The bag and the woolen shawl were taken in a separate parcel and sealed with same seal. It contained 800 grams stuff in the shape of sticks and balls. The whole stuff was re-packed in the same manner and made into a parcel the investigating officer affixed 8 seals of ‘A’ over it. The bag and the woolen shawl were taken in a separate parcel and sealed with same seal. The sample of seal was drawn on a piece of cloth Ext. PW6/C and after its use, the seal was handed over to HHC Ram Saran. 4. NCB forms in triplicate were filled-in on the spot, out of which one is Ext. PW4/B. Case property was taken into possession vide seizure memo Ext. PW6/D in the presence of the witnesses aforesaid and the ruka Ext. PW5/A was sent for registration of the case through HHC Ram Saran which ultimately culminated into FIR Ext.PW5/B. 5. Case property and the accused were produced before PW5 Inspector SHO Surinder Pathak. Accused was sent to judicial lock-up whereas case property was re-sealed with seal impression ‘T’ at four places. The sample of seal was also obtained on a piece of cloth Ext. PW5/C. The SHO aforesaid also filled in the relevant columns of NCB forms and affixed facsimile of seal used by him on the NCB forms. Thereafter handed over the case property for its safe custody with PW4 MHC Ramesh Kumar along with the relevant documents and sample of seals which were entered into the malkhana register, the abstract of which is Ext. PW4/A. 6. On 7.3.2011 case property was handed over by MHC to PW2 HHC Bahadur Singh to deposit it in the forensic science Laboratory, Junga to which he took vide RC Ext. PW4/C along with NCB forms, sample of seals, police docket and deposited in the laboratory. 7. The special report of arrest and seizure was sent to the officer superior within statutory time. Site plan of the recovery Ext. PW7/A was also prepared. Whole stuff was examined in the laboratory and the examination of the result revealed that the quantity of resin of cannabis plant was 33.90% WW besides presence of other ingredients, as mentioned therein. The report is Ext. PW5/D. 8. After completing investigation, challan was presented in the Court for the trial of the accused. He was accordingly chargesheeted for the offence aforesaid to which he pleaded not guilty and claimed trial. 9. The report is Ext. PW5/D. 8. After completing investigation, challan was presented in the Court for the trial of the accused. He was accordingly chargesheeted for the offence aforesaid to which he pleaded not guilty and claimed trial. 9. To prove its case, prosecution examined its witnesses and accused was also examined under Section 313 of the Code of Criminal Procedure. The circumstances which were found attendant upon him were put to which he denied. Though he admitted his arrest in the case but alleged false implication but no reason for his false implication has been given by him. He was afforded an opportunity to lead evidence in defence, but no evidence in defence was led by him. 10. The learned trial Court believed the prosecution evidence thus convicted and sentenced the accused for the offence charged, as aforesaid which has been assailed in the present appeal. 11. Shri Balwant Singh Thakur, learned counsel for the accused vehemently argued that the evidence on record suggests that there was an inhabited village nearby but no independent witness was associated. He further submitted that there are contradictions in the statements of official witnesses which were ignored by the learned trial Court and further, according to him, there is also a cutting in the entries made in the malkhana register which makes the prosecution case doubtful. 12. On the other hand, Mr. P.M. Negi, learned Deputy Advocate General while supporting the impugned judgment of conviction and sentence submitted that the minor discrepancies here and there in the statements of the official witnesses do not cause any dent in the prosecution case which stands otherwise proved beyond doubt. 13. After having considered the rival contentions of the learned counsel for the parties and going through the evidence on record I do not find any discrepancy in the judgment of conviction and sentence and the appeal deserves to be dismissed for the reasons recorded hereinafter. 14. While substantiating the case of the prosecution PW7 S.I. Paras Ram testified that after having given consent by the accused, as aforesaid, he had conducted search of his rucksack and recovered 800 grams of stuff which was wrapped in a black and white woolen shawl which were identified by him during the trial. According to him, it was charas and was re-packed by making it a parcel and 8 seals of English letter ‘A’ were affixed thereupon. According to him, it was charas and was re-packed by making it a parcel and 8 seals of English letter ‘A’ were affixed thereupon. He further stated that woolen shawl was packed in another parcel and it was sealed with the same seal. He also prepared NCB forms in triplicate and out of which proved one Ext. PW4/B having prepared on the spot and also proved the seal impression taken on the spot on a piece of cloth Ext. PW6/C. The seals after its use were handed over to HHC Ram Saran. The case property on the same day was produced before PW8 S.I. SHO Surinder Pathak around 10 p.m. along with NCB form and sample of seals. He re-sealed the same with four seals impression of ‘T’ and further testified in the Court that he also filled in the relevant columns of the NCB forms and proved sample of seal used by him on a piece of cloth Ext. PW5/C. He further testified that the case property with the relevant documents were entrusted to MHC for depositing the same in the malkhana whereas PW4 MHC Ramesh Kumar admitted the above position stated by the SHO and further stated that S.I. SHO had deposited with him a sample of seals ‘A’ and ‘T’ and forms NCB-1 in triplicate to which he deposited in the malkhana. Its entry was made in the register, copy of the said entry is Ext. PW4/A. But I do not find any over writing or cutting in the said photocopy except on the designation of the SHO and the time which is over written as 10.20 p.m. which fact stands admitted by the MHC and he denied that this entry was manipulated just to create evidence against the accused. MHC further stated that on 7.3.2011 he had handed over the case property to PW2 HHC Bahadur Singh for its deposit in the laboratory for its examination along with specimen of seal impressions, NCB forms, copy of FIR to which he took vide RC Ext. PW4/C. On its deposit, PW2 HHC Bahadur Singh is stated to have obtained receipt and handed over it to the MHC aforesaid. The above fact stands substantiated as per RC Ext. PW4/C and the receipt of the items mentioned therein in the laboratory on the same day. PW4/C. On its deposit, PW2 HHC Bahadur Singh is stated to have obtained receipt and handed over it to the MHC aforesaid. The above fact stands substantiated as per RC Ext. PW4/C and the receipt of the items mentioned therein in the laboratory on the same day. The description of the seal, as per report of the laboratory, had tallied with the specimen seals sent by the forwarding authority and were corresponding to the seals mentioned in the NCB form. Thus, the link evidence from the time of recovery till its deposit in the laboratory is complete and witnesses aforesaid testified that so long as the property remained with them, it remained in tact. On its examination, it turned positive for charas, as aforesaid to the extent of resin content of the cannabis plant in the recovered stuff. 15. The investigating officer as well as PW6 Ram Saran who had witnessed the search and seizure was meticulously cross-examined. They identified the recovered articles, including the stuff aforesaid from the possession of the accused. Nothing material could be extracted in their cross examination to doubt the prosecution case. They also denied that it was an unclaimed bag which contained the contraband and the accused was falsely implicated. The investigating officer also denied in cross-examination that the workers were working in a project at a distance of about 5 k.m. and they were available to be included as independent witnesses. 16. The learned counsel for the accused pointed out the statement of PW8 Rebti Ram who was included to demarcate the place from where the accused is alleged to have been purchased charas from an unknown person. But his statement is nothing to do with the recovery which otherwise stands proved. 17. Though the accused has alleged his false implication during the trial but he did not raise any whisper before the Magistrate when produced before him within 24 hours. Thus, his plea of false implication is afterthought and cannot be accepted and the reasons for his false implication have also not been spelt out either in the cross-examination or in his statement under Section 313 of the Code of Criminal Procedure. 18. Further, the inclusion of the independent witnesses is also not imperative when the recovery was from an open place from the accused and also a secluded place away from habitation. 18. Further, the inclusion of the independent witnesses is also not imperative when the recovery was from an open place from the accused and also a secluded place away from habitation. The testimony of police personnel cannot be doubted as the presumption that a person acts honestly applies, as much in their favour as of other persons are without any material on record cannot be distrusted or suspected. 19. For the above stated reasons, the learned trial Court is found to have rightly convicted and sentenced the accused for the offence aforesaid by applying the judgment of Dharampal versus State 2007 HLJ 827 . Hence the impugned judgment of conviction and sentence requires no interference and is accordingly dismissed, so also the pending application, if any.