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2013 DIGILAW 999 (HP)

Parkash Punn v. State of H. P.

2013-12-04

DHARAM CHAND CHAUDHARY

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JUDGMENT : Dharam Chand Chaudhary, J. - Challenge herein is to the judgment dated 5.4.2010, passed by learned Special Judge (Fast Track Court), Kullu in Sessions trial No. 50 of 2009, whereby the appellant (hereinafter referred as the accused for short), has been convicted for the commission of offence punishable under Section 20(b)(i)(B) of the Narcotic Drugs and Psychotropic Substances Act, (hereinafter referred to as the Act in short), and sentenced to undergo rigorous imprisonment for four years and to pay a fine of Rs. 40,000/-. 2. The accused has assailed the findings of conviction recorded by learned trial Court on the grounds that neither the given facts and circumstances nor the law applicable to this case has been appreciated in its right perspective and rather misread and misconstrued. The findings of conviction allegedly are vitiated on account of non-compliance of mandatory provisions enshrined under Section 50 of the Act. The contradictions in the prosecution evidence, which go to the root of the case, have been ignored. There being doubt as to on which seat the accused was sitting in the bus, no finding of conviction could have been recorded against him. 3. In a nutshell, the case of the prosecution is that on 24.2.2009, around 6.30 p.m., when the police of Police-Check Post, Bajaura, stopped bus bearing No. HP-01-3523 for routine checking, two Nepalese occupying seat Nos. 31 and 32, got frightened and on suspicion made to alight from the bus in the presence of its driver and conductor S/Shri Naresh Kumar and Raj Kumar (PW-2). They were brought to the Police Check Post situated on the spot itself. On enquiry they both disclosed their names as Parkash Punn (accused in this case) and Om Lama. Against Om Lama a separate case came to be registered vide FIR No. 57 of 2009 Ext.D-2. On account of there being suspicion of the accused in possession of some narcotic substance or contraband, PW-3 ASI Jagat Singh apprised him of his legal right of being searched either before a Magistrate or Gazetted Officer, as required under Section 50 of the Act vide memo Ext.PA. The accused vide his consent given in writing opted for being searched by PW-3 himself. His personal search was conducted. On getting taken off his shoes, one polythene envelop each in both shoes was found kept therein. The accused vide his consent given in writing opted for being searched by PW-3 himself. His personal search was conducted. On getting taken off his shoes, one polythene envelop each in both shoes was found kept therein. On further search of the polythene envelops Charas in the form of sticks, was recovered therefrom. It was weighed and found to be 385 grams. After resorting to sealing and sampling process, the recovered Charas was sealed with seal "T" in the presence of witnesses. The sample parcels were also sealed separately with the same seal. The sample of seal was separately obtained on a piece of cloth and NCB-I forms were filled in triplicate on the spot. The recovered Charas was taken into possession vide seizure memo Ext.PD. It is thereafter Rukka Ext.PG was prepared and handed over to Constable Nikhil with the direction to take the same to Police Station, Bhuntar. On the basis of Rukka Ext.PG, FIR Ext.PS came to be registered in the Police Station. 4. Investigating Officer ASI Jagat Singh on completion of the investigation on the spot produced the accused and also the recovered Charas before PW-9 Krishan Chand, the then SHO, Police Station, Bhuntar. PW-9 had resealed the parcels containing the recovered Charas and sample parcels with three seals of impression "K" and also filled columns No. 9 to 11 of the NCB-I forms. The sample of seal "K" was obtained separately on a piece of cloth. The case property alongwith documents was handed over to PW4 HC Sarswati, the then MHC of the Police Station. She entered the case property in the Malkhana register and forwarded one of the sample parcels alongwith samples of seals "T" and "K" and NCB-I form in triplicate to FSL, Junga through Constable Deep Chand vide RC No. 40/09, copy of which is Ext.PL. The said constable had deposited the case property in the laboratory and obtained receipt Ext.PM on the RC. 5. The special report Ext.PR was also prepared and handed over to Additional Superintendent of Police, Kullu on 25.2.2009. The said report was entered in the relevant register by PW-8 HC Nirat Singh, Reader to Additional Superintendent of Police. On receipt of the chemical examiner report Ext.PN, report under Section 173 of the Code of Criminal Procedure was filed against the accused for trial. 6. The said report was entered in the relevant register by PW-8 HC Nirat Singh, Reader to Additional Superintendent of Police. On receipt of the chemical examiner report Ext.PN, report under Section 173 of the Code of Criminal Procedure was filed against the accused for trial. 6. Consequently, charge under Section 20 of the Act was framed against the accused to which he pleaded not guilty and claimed trial. The prosecution in turn has examined nine witnesses in all. On the other hand, the accused in his statement recorded under Section 313 of the Code of Criminal Procedure has denied the entire prosecution case and examined DW-1 Constable Atul Sharma in his defence. 7. Reliance has also been placed on the statement Ext.D-1 of DW-1 Atul Sharma and judgment Ext.D-2 whereby Om Lama another occupant of the bus, made to alight alongwith accused, has been acquitted of the charge of recovery of 215 grams of Charas when searched in Police Check Post alongwith the accused. 8. On behalf of the accused it is canvassed that the prosecution evidence being self-contradictory, was neither sufficient nor cogent to record findings of conviction that too when Om Lama, accused in FIR No. 57 of 2009 made to alight from the same bus and on his search Charas weighing 215 grams recovered from his both shoes, has been acquit ted by the learned trial Court particularly when the evidence in that case was almost identical in nature. 9. On the other hand, learned Additional Advocate General submits that the accused has been rightly convicted and sentenced on appreciation of the evidence available on record in its right perspective and as such it is submitted that the impugned judgment calls for no interference by this Court. 10. The reappraisal of the evidence makes it crystal clear that there exists a Police Check Post at Bajaura on the boundary of District Mandi and District Kullu. There is no quarrel so as to PW-3 ASI Jagat Singh, Incharge thereof and Constables Nikhil Kaundal and Atul Sharma, PW-1 and DW-1, respectively being posted there. A private bus bearing registration No. HP-01-3523 having been stopped on the Check Post for the purpose of routine checking also stands established not only from the statements of Investigating Officer and Constables Nikhil Kaundal as well as Atul Sharma, but also from that of PW-2 Raj Kumar, the Conductor of the bus. A private bus bearing registration No. HP-01-3523 having been stopped on the Check Post for the purpose of routine checking also stands established not only from the statements of Investigating Officer and Constables Nikhil Kaundal as well as Atul Sharma, but also from that of PW-2 Raj Kumar, the Conductor of the bus. The accused as per prosecution case was occupying seat No. 31, whereas Om Lama accused in FIR No. 57 of 2009 seat No. 32. However, even if there is any confusion in this behalf as learned Counsel representing the accused submits, in that event, the same is hardly of any consequence as the fact remains that the accused was one of the occupants of the bus. Whether he was occupying seat No. 31 or 32, is not so material and to be taken a circumstance against the prosecution. The Investigating Officer had reasons to believe that the accused was carrying some narcotic substance with him because it is established from his own testimony and that of PW-1 Constable Nikhil Kaundal and for that matter even from DW-1 Constable Atul Sharma that on seeing the police in the bus the accused got perplexed. Therefore, before resorting to his personal search vide memo Ext.PA he was apprised about his legal right of being searched either before a Magistrate or a Gazetted Officer, if so chose. The endorsement made in this document further reveals that the accused opted for being searched by the Investigating Officer himself. 11. The recovery memo Ext.PD substantiated the manner in which the Charas was recovered from both the shoes worn by the accused at the relevant time, as claimed by the prosecution in the police report. Rukka Ext.PG prepared by PW-3 immediately after recovery of the Charas on the basis of which FIR Ext.PS came to be registered in Police Station, Bhuntar and resorting to sealing and sampling process also substantiated the prosecution case in this behalf. The spot map Ext.PH tells us about the location of the place of occurrence. 12. The accused was arrested on the spot and also made aware of the grounds of arrest vide memo Ext.PF. It is proved from the NCB-I form Ext.PE that columns No. 1 to 8 were filled in by the Investigating Officer on the spot. The spot map Ext.PH tells us about the location of the place of occurrence. 12. The accused was arrested on the spot and also made aware of the grounds of arrest vide memo Ext.PF. It is proved from the NCB-I form Ext.PE that columns No. 1 to 8 were filled in by the Investigating Officer on the spot. The remaining columns 9 to 11 were filled in by the Station House Officer when the accused alongwith the case property was produced by PW-3 before him, i.e., PW-9 Krishan Chand. The special report Ext.PR was prepared by PW-3 and handed over to Additional Superintendent of Police, Kullu. It is proved so from the statement of PW-8 HC Nirat Singh, who at that time was posted as Reader to Additional Superintendent of Police. 13. The link evidence that the case property was handed over to PW-4 HC Sarswati, the then MHC, Police Station, Bhuntar by PW-9 and she retained the same in her safe custody in the Malkhana is not only established from the statement of Smt. Sarswati, but also that of PW-9 Krishan Chand. The abstract of the Malkhana register Ext.PK can also be pressed into service qua this aspect of the matter. The Road Certificate Ext.PL reveals that the case property was despatched to Forensic Science Laboratory, Junga through PW-5 Constable Deep Chand on 25.2.2009 itself. The same was received in the laboratory on 26.2.2009 vide endorsement Ext.PM on the reverse of the Road Certificate. It has come in the statement of PW-4 HC Sarswati and that of Constable Deep Chand that the case property including sample parcels so long remained in their custody, were not allowed to be tampered with in any manner whatsoever. 14. If coming to the report Ext.PO, the same reveals that the entire mass sent to the laboratory for analysis was extract of cannabis, hence sample of Charas. The report, therefore, is in conformity with the ratio of Full Bench judgment of this Court in Criminal Appeal No. 763 of 2002, titled State of HP v. Mehboob Khan (2013 (3) Him. L.R. (FB) 1834). 15. True it is that PW-2 Raj Kumar, one of the independent witnesses associated by the police during investigation of the case did not support the entire prosecution case, however, he has admitted his signatures on the consent memo Ext.PA, recovery memo Ext.PD and also on the arrest memo Ext.PF. L.R. (FB) 1834). 15. True it is that PW-2 Raj Kumar, one of the independent witnesses associated by the police during investigation of the case did not support the entire prosecution case, however, he has admitted his signatures on the consent memo Ext.PA, recovery memo Ext.PD and also on the arrest memo Ext.PF. This witness further tells us that on that day he was Conductor in the bus in question which was made to stop at Police Check Post, Bajaura by PW-3. He also admits that two Nepalese were traveling in the bus and were occupying seat Nos. 31 and 32. Also that those Nepalese were made to alight from the bus by the police. This part of his testimony if read with the evidence as has come on record by way of the testimony of PW-1 Constable Nikhil Kaundal and also the Investigating Officer PW-3 ASI Jagat Singh substantiated the manner in which the search of the accused has been conduced by PW-3 and Charas weighing 385 grams recovered from his possession, irrespective of this witness having not supported the search and recovery of the Charas from the accused. He seems to have deposed falsely. True it is that when an independent witness does not support the prosecution case, however, the same is supported by the official witnesses, two possible views emerge on record and as per settled legal principles, the view favouring the accused has to be formed and the benefit given to him. However, the present is not a case of this nature for the reason that PW-2 Raj Kumar has supported the case on material aspects and as there is nothing suggesting that the Investigating Officer and PW-1 were inimical towards the accused and as such deposed falsely against him coupled with the settled legal principle that the testimony of the police witnesses is as much good as that of an independent person, hence can be relied upon, of course, with all cautions, this Court is satisfied that the Charas weighing 385 grams, was recovered from the conscious and exclusive possession of the accused. 16. It is significant to note that DW-1 Atul Sharma was examined by the accused in his defence. During his cross-examination conducted by learned Public Prosecutor he also supported the entire prosecution case qua the manner in which the search and seizure has been taken place. 16. It is significant to note that DW-1 Atul Sharma was examined by the accused in his defence. During his cross-examination conducted by learned Public Prosecutor he also supported the entire prosecution case qua the manner in which the search and seizure has been taken place. Be it stated that in Sessions Trial No. 37 of 2009 arising out of FIR No. 57 of 2009, he has been recorded as a prosecution witness. He has supported recovery of the Charas weighing 215 grams from said Om Lama. Said Shri Om Lama with more or less identical evidence has however been acquitted by the learned trial Judge, i.e. the successor-in-office of the Presiding Judge, who has delivered the judgment in this case. The accused, however, is not entitled to any benefit from the acquittal of said Shri Om Lama for the reasons that the case against him has been tried separately on the basis of evidence so collected by the police and ultimately produced during the course of trial. It was for the prosecution to examine as to whether the acquittal of Om Lama was justified or not and this question is left open to be considered by the State. 17. So far as the case in hand is concerned, it would not be improper to conclude that the Court below has appreciated the oral as well as documentary evidence available on record in its right perspective and as such the findings of conviction recorded against the accused calls for no interference. 18. In the matter of sentence, taking into consideration the quantity of Charas recovered from the accused coupled with the factum of there being no evidence of past criminal history including the commission of same and similar offence previously by the accused, I am of the view that the lenient view is required to be taken. 19. The accused, as noticed at the very outset, has been sentenced to undergo rigorous imprisonment for four years and to pay a fine of Rs. 40,000/- vide impugned judgment which is dated 5.4.2010. He is about to complete the sentence so awarded against him. Anyhow, this Court finds the present a fit case where the sentence awarded against the accused deserves to be reduced. He is, therefore, sentenced to the period already undergone and the amount of fine is also reduced from Rs. 40,000/- to Rs. 20,000/-. 20. He is about to complete the sentence so awarded against him. Anyhow, this Court finds the present a fit case where the sentence awarded against the accused deserves to be reduced. He is, therefore, sentenced to the period already undergone and the amount of fine is also reduced from Rs. 40,000/- to Rs. 20,000/-. 20. Therefore, for all the reasons hereinabove, this appeal fails and the same is accordingly dismissed. However, the accused is sentenced to undergo the imprisonment for the period already undergone and to pay Rs. 20,000/- as fine. On his failure to pay the amount of fine, he shall further undergo simple imprisonment for three months. He be set free forthwith, if not required in any other case. The impugned judgment stands modified accordingly and the appeal is disposed of. Appeal partly allowed.