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2013 DIGILAW 567 (HP)

Rohtash v. State of H. P.

2013-06-19

DHARAM CHAND CHAUDHARY

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JUDGMENT Dharam Chand Chaudhary, Judge (Oral) Learned Special Judge-II, Kinnaur at Rampur Bushahr vide judgment dated 13.05.2011 in Sessions Trial No. 8-AR/3 of 2007/2010, impugned before this Court in the present appeal, has convicted the appellant (hereinafter referred to as the ‘Accused’) under Section 20(b) (ii) (B) of the Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ‘Act’ in short) and sentenced him to undergo rigorous imprisonment for three years and to pay a fine of Rs. 25,000/-. On his failure to deposit the amount of fine, to undergo simple imprisonment for a period of six months. 2.The legality and validity of the impugned judgment has been questioned on the grounds inter-alia that the same is based on surmises and conjectures, as the Court below allegedly has failed to appreciate the evidence on record, in its right perspective. The conviction of the accused based on the sole testimony of PW-2 HHC Santosh Kumar, PW-4 HHC Gulab Singh and PW-5 ASI Rajinder Kumar, none else but police officials is stated to be not legally sustainable. Otherwise also, there being contradictions/improvements and inconsistencies as well as infirmities in the prosecution evidence, no findings of conviction could have been recorded against the accused and that he was entitled to be acquitted by giving him benefit of doubt. It is further pointed out that the evidence as has come on record by way of testimony of the prosecution witnesses, particularly, qua the manner in which the accused was apprehended and search and seizure taken place is completely at variance and contradictory from the evidence available on record. There is no iota of evidence suggesting that it is that very sample drawn out of the contraband allegedly recovered from the accused was sent to Forensic Science Laboratory for chemical examination. No explanation as to why the sample was sent for analysis twice is forth coming. There is no iota evidence that NCB forms were also handed over to the MHC along with the contraband allegedly recovered from the accused for the safe custody in the ‘Malkhana’. The factum of non-joining of independent witnesses either from Village Nagan or Haripur to the search and seizure is also erroneously ignored. The Court below has also failed to appreciate that variation in weight when the case property was weighed in the Laboratory was fatal to the prosecution case. The factum of non-joining of independent witnesses either from Village Nagan or Haripur to the search and seizure is also erroneously ignored. The Court below has also failed to appreciate that variation in weight when the case property was weighed in the Laboratory was fatal to the prosecution case. It has, therefore, been submitted that there was no legal and acceptable evidence warranting the conviction of the accused. In order to decide the fate of this appeal, it is desirable to take down the facts, in brief, as emerges from the perusal of the record. 3. On 13.12.2006 vide Rapat Rojnamcha Ext. PW8/G PW-5 ASI/SHO Rajinder Kumar, Police Station, Anni, Distt. Kullu accompanied by PW-2 HHC Santosh Kumar, PW-4 HHC Gulab Singh and PW-5 HC Pushp Dev was on general patrol duty and checking traffic also. When around 10.15 a.m, police party was present near Nagan Moar, accused Rohtas was spotted to be coming from Nagan side and going towards Luhari. He was having a rucksack (bag) with him. On seeing the police party, he got scared. On suspicion of possession of Narcotic substance he was apprehended and PW-5 informed the accused that his personal as well as search of bag is required to be conducted. Also that, if he so desire, his search could be arranged to be conducted in the presence of a Magistrate or a Gazetted Officer, for which he is legally entitled. Such information was given not only orally but in writing also vide memo Ext. PW4/A. The accused has made an endorsement under his signature on Ext. PW4/A and consented for his personal search and search of the rucksack by the police. This has led in giving his own search first by PW-5, who had conducted the search of the former, as is apparent from memo Ext. PW4/B. Thereafter, PW-5 had searched the bag of the accused and contraband allegedly charas weighing 950 Grams was recovered therefrom. Two samples 25 Grams each were separated from the bulk and sealed in two parcels with seal ‘X’. The remaining bulk was also sealed separately with the same seal. The sample parcels and the parcel containing recovered charas were taken in possession vide recovery memo Ext. PW4/C in the presence of the witnesses Head Constable Pushp Dev and HHC Gulab Chand. NCB forms were filled in triplicate. The IO thereafter prepared a rukka Ext. The remaining bulk was also sealed separately with the same seal. The sample parcels and the parcel containing recovered charas were taken in possession vide recovery memo Ext. PW4/C in the presence of the witnesses Head Constable Pushp Dev and HHC Gulab Chand. NCB forms were filled in triplicate. The IO thereafter prepared a rukka Ext. PW2/A and handed over the same to PW-2 HHC Santosh Kumar for being taken to the Police Station for registration of the case. On the basis of rukka Ext. PW2/A ASI Lal Singh had recorded FIR Ext. PW2/B and after making the endorsement Ext. PW2/C on the rukka, prepared the file and it was sent to the IO on the spot. During the course of further investigation conducted by the IO on the spot, he had prepared site plan Ext. PW5/C and thereafter arrested the accused. He was apprised about the grounds of arrest in writing vide memo Ext. PW5/D. The personal search of the accused was also conducted vide memo Ext. PW5/E. Thereafter, IO left the spot for the Police Station along with accused and also the case property. He handed over the case property along with sample parcels and parcel containing recovered charas to PW-8 ASI Lal Singh, the then MHC, Police Station, Anni, who made an entry thereof at Serial No. 134 of the Malkhana register Ext. PW8/A and retained the same in his safe custody. On 19.12.2006, PW-8 forwarded one of the sample parcels to Forensic Science Laboratory, Chandigarh through HHC Nihal Chand No. 234 vide R.C No. 78/2006 Ext. PW8/B. Endorsement to this effect is also in the remarks column of the abstract of Malkhana register Ext. PW8/A. Rapat No. 25 in rapat rojnamcha dated 19.12.2006 pertains to departure of HHC Nihal Chand to Forensic Science Laboratory, Chandigarh along with the sample parcel. The rapat No. 23 Ext. PW8/E dated 22.12.2006 pertains to arrival of HHC Nihal Chand in Police Station after depositing the sample parcel in the Laboratory. Endorsement on the reverse of RC Ext. PW8/B reveals that along with the sample parcel copy of FIR, recovery memo, NCB-I forms in triplicate along with sample seal and C.F.S.L forms were also sent to the Laboratory, where it was duly received on 20.12.2006. The report received from F.S.L. Chandigarh is Ext. PW5/F, which reveals that exhibit forwarded for analysis was a sample of charas. PW8/B reveals that along with the sample parcel copy of FIR, recovery memo, NCB-I forms in triplicate along with sample seal and C.F.S.L forms were also sent to the Laboratory, where it was duly received on 20.12.2006. The report received from F.S.L. Chandigarh is Ext. PW5/F, which reveals that exhibit forwarded for analysis was a sample of charas. 4.The record further reveals that the entire bulk was forwarded to Forensic Science Laboratory, Chandigarh for analysis vide R.C. No. 64/10 on 2.8.2010 through Constable Mukesh Kumar. Rapat Ext. PW4/A and Ext. PW6/C in rojnamcha were also entered in this behalf. In the Forensic Science Laboratory, the entire bulk sealed in a parcel was received and analyzed. The report Ext. PW5/G, which was collected by HHC Nihal Chand, as is apparent from rapat rojnamcha No. 36(a) dated 23.8.2010 Ext. PW6/D reveals that the exhibits sent for analysis were found to be the extracts of cannabis and sample of charas. A special report Ext. PW1/A was also prepared and handed over to S.D.P.O. Anni on 14.12.2006. 5. On completion of the investigation, charge sheet under Section 20 of the Act was filed against the accused in the trial Court. The accused pleaded not guilty to the charge and claimed trial. Consequently, the prosecution has examined eight witnesses in all to sustain the charge against him. The statement of accused under Section 313 Cr.P.C was also recorded. 6.After holding full trial and appreciating the evidence available on record as well as hearing learned Public Prosecutor and learned defence counsel, the Court below has convicted and sentenced the accused as pointed out at the very out set. The legality and validity of the findings of conviction recorded against the accused has to be adjudged in the light of the evidence available on record and also the arguments addressed on both sides. 7. Learned counsel representing the accused has canvassed that non-joining of independent witnesses by the IO is fatal to the prosecution case, as according to him, the evidence as has come on record by way of testimony of police officials is contradictory, hence it is not safe to base the conviction of the accused solely thereon. 7. Learned counsel representing the accused has canvassed that non-joining of independent witnesses by the IO is fatal to the prosecution case, as according to him, the evidence as has come on record by way of testimony of police officials is contradictory, hence it is not safe to base the conviction of the accused solely thereon. 8.On the other hand, learned Additional Advocate General has strenuously contended that as per well settled legal principles, the statements of police witnesses, if otherwise inspire confidence is as much as good as that of any other witnesses including the independent witnesses and as there is neither any contradictions nor improvements in the prosecution evidence, therefore, it has been contended that well reasoned judgment passed by learned trial Court, calls for no interference in this appeal. 9.Before coming to the evidence available on record, I would like to first deal with the contentions that under Section 100 (4) of the Code of Criminal Procedure, the IO was under an obligation to associate independent witnesses, who could have witnessed the search and seizure, if taken place on the spot in a fair manner, raised by learned counsel representing the accused. In this behalf, it would not be improper to conclude that the present is not a case of search of a place or search of a person or any article in or about such a place, pursuant to some information available with the IO. The present rather is a case which in all fairness and also in the ends of justice can be termed a case of chance recovery, for the reason that it is nobody’s case that police party had prior information of illicit trafficking of drugs by someone and as such had arranged a ‘Nakka’ at the place of occurrence. The prosecution case duly proved from the prosecution evidence, particularly, rapat rojnamcha Ext. PW8/F is that the police party headed by ASI/SHO Rajinder Kumar, PW-5 was on general patrol duty and checking of traffic in that area when spotted the accused with a rucksack. On seeing the police, he got scared and was apprehended and search of his bag conducted after obtaining his consent, not only orally but also in writing. PW8/F is that the police party headed by ASI/SHO Rajinder Kumar, PW-5 was on general patrol duty and checking of traffic in that area when spotted the accused with a rucksack. On seeing the police, he got scared and was apprehended and search of his bag conducted after obtaining his consent, not only orally but also in writing. True it is that PW-2 HHC Santosh Kumar PW-4 Gulab Chand and for that matter the IO PW-5, all have stated in one voice that two villages namely Nagan and Haripur are situated at a distance of 500 meters from the place of occurrence. Not only this, but as per them no efforts were made by the IO to call for the witnesses from the said villages. They also admit that had any efforts been made to associate the witnesses from the aforesaid villages, the witnesses would have available to the IO within 15-20 minutes. The evidence further reveals that during the course of search and seizure, few vehicles also crossed away from that portion of the road where the accused was apprehended and the investigation conducted. The ID, however, neither stopped any vehicle nor requested any occupants of such vehicles to witness the search and seizure. No explanation is forth coming as to why the ID did not make any efforts to associate the independent witnesses. This, however, not vitiate the trial, for the reason that the police officials being witnesses in a case can also be relied upon, no doubt, the evidence having come on record by way of their statements should be examined with all caution and circumspect. The reference here can be made to the judgment of the Hon’ble Supreme Court in Girja Prasad versus State of M.P., (2007) 7 Supreme Court Cases 625. Their Lordships have held as under:- “ 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. 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.” 10.If coming to the evidence, as has come on record by way of statements of PW-2 HHC Santosh Kumar, PW-4 HHC Gulab Chand and PW-5 ASI Rajinder Kumar, the Investigating Officer, the close scrutiny of their statements make it crystal clear that neither is there any contradiction nor improvement or any padding. They rather supports the prosecution case on all counts i.e. right from the stage when the accused was apprehended till the recovery of the contraband from the rucksack, he was carrying with him and also the observance of all codal formalities by the IO on the spot. In their cross-examination, the defence is miserably failed to extract anything lending support, which can be said to be of any help to the accused. As a matter of fact, the present is a case where the accused has not raised any plea in his defence, as is apparent from the trend of cross-examination conducted on his behalf and also his statement recorded under Section 313 Cr.P.C. In his statement under Section 313 Cr.P.C, his answer to the incriminating circumstances, as appeared against him in the prosecution evidence is denial simplictor. He is resident of Village Kumi, Tehsil and District Sonipat, Haryana, what he was doing at Nagan Moar near Luhari in Tehsil Anni in an interior area of District Kullu, remained unexplained. He is resident of Village Kumi, Tehsil and District Sonipat, Haryana, what he was doing at Nagan Moar near Luhari in Tehsil Anni in an interior area of District Kullu, remained unexplained. His silence rather leads to the only conclusion that he is dealing in the business of Narcotic substances and has gone there in connection with procurement of such substance and then to sell the same to his customers none else but teenagers, the future of our Nation and as such committed a serious offence not only against an individual but society at large. 11.The recovery of contraband from the exclusive and conscious possession of the accused which in a case of this nature is sine qua non for recording findings of conviction is satisfactorily proved on record. The contraband recovered from him is nothing else but the charas. The report Ext. PW5/G given by the Forensic Science Laboratory, Junga after analyzing the entire bulk makes it crystal clear that the extracts of cannabis were found to be present in all the three parcels were samples of charas. Not only this but quantity of resin found in the exhibit also finds mention in the report. It is on the basis of this report, though weight of recovered charas was 950 Grams, however, taking into consideration the resin contents present therein, it was taken as 2.73 Grams, which is less than commercial quantity but greater than small quantity. The link evidence also stands satisfactorily proved, because the evidence as has come on record by way of testimony of prosecution witnesses, particularly, PW-5 and PW-8 that NCB forms were filled in on the spot and handed over to PW-8 along with sample parcel and parcel containing recovered bulk for the safe custody in the Malkhana. No doubt, in the entry made in the Malkhana register, there is no mention of deposit of NCB forms, however, it may be on account of over sight and as such not fatal to the prosecution case. The deposit of the sample parcel in the Forensic Science Laboratory, Chandigarh by HHC Nihal Chand on 20.12.2006 is also proved from the rapat rojnamcha Ext. PW2/B and Ext. PW8/E. Similarly, the deposit of the entire bulk in Forensic Science Laboratory, Junga on 2nd August, 2010 by Constable Mukesh Kumar is also proved on record. The deposit of the sample parcel in the Forensic Science Laboratory, Chandigarh by HHC Nihal Chand on 20.12.2006 is also proved from the rapat rojnamcha Ext. PW2/B and Ext. PW8/E. Similarly, the deposit of the entire bulk in Forensic Science Laboratory, Junga on 2nd August, 2010 by Constable Mukesh Kumar is also proved on record. The evidence further reveals that all the sample parcels and parcel containing the recovered bulk were duly sealed with seal ‘X’ and deposited in the Laboratory. No tampering of the case property is established on the record. The case was registered vide FIR Ext. PW2/B on 13.12.2006 around 12.30 p.m. The endorsement on the FIR under the seal and signature of learned Sessions Judge, Kinnaur Division at Rampur Bushahr reveals that copy of FIR was received in the Court on the same day at 4.00 p.m. 12.Nothing, therefore, can be inferred from the evidence available on record that the accused was not apprehended in the manner, as claimed by the prosecution and that this case has been foisted against him. The present is also not a case where it can be said that the Court below has misread and mis-construed or failed to appreciate the evidence on record in its right perspective. Therefore, accused has rightly been convicted. So far as the sentence part is concerned, no interference on this score is warranted, for the reason that for the commission of offence punishable under Section 20 of the Act, there is provision of sentence to undergo imprisonment upto 10 years and fine upto rupees three lacs. Learned trial Judge has imposed the sentence of only three years of imprisonment upon the accused with fine to the tune of Rs.25,000/-. Therefore, a lenient view in the matter of sentence has been taken. Being so, there is no merit in the appeal and the same as such deserves dismissal. 13.For all the reasons discussed hereinabove, there is no merit in the appeal and the same is accordingly dismissed.