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Himachal Pradesh High Court · body

2014 DIGILAW 1002 (HP)

Ramu v. State of H. P.

2014-07-30

RAJIV SHARMA, SURESHWAR THAKUR

body2014
JUDGMENT Sureshwar Thakur, Judge 1. This appeal is directed against the judgement rendered on 1.10.2009 by the learned Special Judge, Chamba Division, Chamba, H.P. in Sessions trial No. 11 of 09, whereby the appellant has been convicted and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. One lac for commission of offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘NDPS Act’) and in default of payment of fine, he has been sentenced to undergo rigorous imprisonment for one year. 2. The genesis of the prosecution story, is, that on 1.1.2009, Inspector R.P.Jaswal (PW-9), SHO Police Station Sadar, alongwith HC Dev Raj (PW-1), HC Anirudh, Constable Latif Mohd., Constable Yakub Mohd. (PW-3) and Constable Surinder Kumar (PW-4) was present at Padla Morh, in connection with patrolling and traffic checking, when at about 1.30 a.m the accused arrived there from Saho side carrying a bag on his right shoulder. His arrival at the said hours awakened the suspicion of the police party. The accused was stopped by the police for the purpose of interrogation and on seeing the police he became perplexed. The police officials gave an option comprised in Ext.PW-1/A to the accused whether he wants to be searched before a magistrate or a gazetted officer or by the police and the accused gave his consent to his being searched by the police official. Subsequently, Inspector R.P. Jaswal, gave his personal search to the accused vide memo Ext.PW-1/B and nothing incriminating was found from his possession on search being carried out by the accused. On search of the bag found in possession of the accused it was found to be containing charas which on weighment was found to be 6 Kgs. Two samples each weighing 25 gms. were separated from the charas so recovered, which were put in two different parcels and sealed with seal impression ‘A’, whereas the remaining charas was put in the same bag and thereafter it was sealed in a cloth parcel with the same seal impression and specimen of the seal used was taken separately, vide Ext.PW-1/C and the sample parcel and the parcel containing residue charas were taken into possession vide memo Ext.PW-1/D. NCB form in triplicate Ext.PW-9/B was prepared and seal impression was also affixed on the NCB form. Site plan Ext.PW-9/A was separately prepared by Inspector R.P.Jaswal. Thereafter, Rukka Ext.PW-5/A was prepared and sent to the Police Station Sadar, Chamba, through Constable Yakub Mohd. (PW-3) and copy of the same was also sent to the office of Superintendent of Police, Chamba, through Constable Surinder Kumar (PW-4) and on receipt of Ruqua, F.I.R Ext.PW-7/A came to be recorded at P.S. Sadar, Chamba by S.I. Diwan Chand (PW-7). Additional SHO Police Station, Sadar, Chamba, made endorsement Ext.PW-7/B on the Ruqua. The accused was arrested under memo Ext.PW1/E. The case property, NCB form, sample seal and recovery memo were deposited with H.C. Kailash Chand (PW-8), who made entry regarding the same in the Malkhana Register, copy of which is Ext.PW-8/A and on 2.1.2009 one sample parcel alongwith sample seal, NCB form, recovery memo and photo copy of the F.I.R, was sent to FSL Junga, through HHC Uttam Singh (PW-6) vice R/C No. 1/09, copy of which is Ext.PW-8/B, who deposited the same at FSL, Junga on 3.1.2009 and the sample was found to be mixture of cannabis and sample of charas, report whereof is Ext.PW-7/D. Special report Ext.PW-5/B was prepared and sent to S.P.Chamba through Constable Ghinder Dutt (PW-2), who after seeing the report handed over the same to Constable Om Prakash for the purpose of record. Statements of the witnesses were recorded by Inspector R.P.Jaswal (PW-9) and SI Diwan Chand (PW-7), as per their versions. 3. After completion of the investigation, challan under Section 173 of the Cr.P.C. was prepared and filed in the Court. The trial court charged the accused for his having committed offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, to which he pleaded not guilty and claimed trial. In order to prove its case, the prosecution examined as many as 9 witnesses. On closure of the prosecution evidence, the statement of the accused under Section 313 Cr.P.C. was recorded in which he pleaded innocence and claimed trial. On closure of proceedings under Section 313 Cr.P.C the accused person was given an opportunity to adduce evidence, in, defence, and he did not choose to adduce evidence in defence. 4. The first witness, who, stepped into the witness box to prove the prosecution case, is, PW-1 HC Dev Raj. He deposes that on 31.12.2008, he alongwith SHO R.P.Jawal, HC. On closure of proceedings under Section 313 Cr.P.C the accused person was given an opportunity to adduce evidence, in, defence, and he did not choose to adduce evidence in defence. 4. The first witness, who, stepped into the witness box to prove the prosecution case, is, PW-1 HC Dev Raj. He deposes that on 31.12.2008, he alongwith SHO R.P.Jawal, HC. Anirudh, C. Surinder Kumar, C. Yakub Mohammad, C. Latif Mohammad, left Police Station, Chamba, at 11.30 p.m in police vehicle No. HP-44-0068 in connection with Nakka duty and routine checking towards Padla Morh. He deposes that they reached at Padla Morh at about 12 in the midnight and laid a Naka. He deposes that at about 1.30 a.m one person came on the spot. His presence was inquired into by the police personnel present there whereupon he got perplexed. He deposes that he was carrying a bag hanging on his shoulder. On further inquiry, PW-1 deposes that he revealed his name Ramu S/o Netar, R/o Village Mandala, and the accused present in Court has been deposed to be the same person. On suspicion of the SHO having been awakened qua his carrying some contraband in his bag, SHO asked the accused whether he wanted to give his search before a Gazetted Officer, a Magistrate or before the police party present at the spot, it being his legal right. The accused consented to being searched before the police party present at the spot and in the above regard memo Ext.PW- 1/A was recorded, which came to be singed by this witness, HC Anirudh, SHO and the accused. Subsequently, SHO gave his personal search to the accused, vide Ext.PW-1/B, which came to be signed by PW-1, HC Anirudh, SHO and accused Ramu. Thereupon, he deposes that with the help of the vehicle light they checked the bag of the accused and it was found containing Charas in the shape of sticks. The recovered charas was weighed with weights and scale, which were carried in the I.O. kit and the charas was found 6 Kgs. From the above recovered charas, two samples of 25 grams each were separated, packed and sealed with seal impression ‘A’. He continues to depose that the remaining charas was packed in the same bag and it was sealed in a parcel by affixing 10 seals on it. From the above recovered charas, two samples of 25 grams each were separated, packed and sealed with seal impression ‘A’. He continues to depose that the remaining charas was packed in the same bag and it was sealed in a parcel by affixing 10 seals on it. Thereafter, the SHO filled in the NCB form in triplicate, which was also singed by him. Specimen seal impression was prepared vide Ext.PW-1/C, which was also singed by him as well as by HC. Anirudh. He further deposes that seal impression was also embossed on the NCB forms. He further deposes that thereafter seizure memo Ext.PW-1/D was prepared, which was also singed by him, HC. Anirudh, SHO and by the accused. On the parcel having been produced by the learned Public Prosecutor during the course of the examination-in-chief of this witness and theirs being permitted to be opened, this witness deposes that big parcel Ext.P-1, cloth bag Ext.P-2 containing charas Ext.P-3 and sample parcels Ext.P-4 and Ext.P-5, are the same which were recovered from the possession of the accused. Ruqua has been deposed by him to be prepared by SHO and its having been sent to P.S. Chamba for registration of the case through C. Yakub Mohammad and its copy was sent to the S.P. Chamba, for information, through C. Surinder Kumar at 3.20 a.m. He deposes that they completed the proceedings at the spot and came back and reached at the Police Station at 5.35 a.m. He deposes that the accused was arrested vide memo Ext.PW1/E and the grounds of arrest were communicated to him. During the course of his cross-examination by the learned defence counsel he feigns ignorance whether village Ludera is at a distance of 1-½ kilometers from the spot. He admits the suggestion that there is a Forest Barrier at Ludera. 5. PW-2 deposes that on 3.1.2009 special report of the case was given to him by the SHO, which he took to the Reader of Additional S.P., Chamba and handed over the same to C.Om Prakash, Reader to S.P.Chamba. He continues to depose that he had taken two copies of the Special Report. Copy of special report Mark-A was signed by C.Om Prakash in token of receiving the Special report. 6. PW-3 C. Yakub Mohammad, deposes in unanimity with and in corroboration to the deposition of PW- 1 qua the genesis of the prosecution case. He continues to depose that he had taken two copies of the Special Report. Copy of special report Mark-A was signed by C.Om Prakash in token of receiving the Special report. 6. PW-3 C. Yakub Mohammad, deposes in unanimity with and in corroboration to the deposition of PW- 1 qua the genesis of the prosecution case. PW-4 C.Surinder Kumar, too, deposes in unanimity with and in corroboration to the testimony of both PW-1 and PW-3 qua the genesis of the prosecution case. 7. PW-5 Constable Om Prakash deposes that on 1.1.2009 copy of Ruqua was received by him through C.Surinder Kumar at 4.10 a.m, which was put up by him in the residence of Additional S.P., Chamba, who on seeing it returned it to him for record. The copy of Ruqua is deposed to be comprised in Ext.PW-5/A. He deposes that copy of Ruqua was entered by him in the register at Sr. No. 2/VD/09 dtd. 1.1.2009. On 3.1.2009, he deposes, that Constable Ghinder Dutt brought the Special Report Ext.PW-5/B at 10.30 a.m., which was entered in the receipt register at Sr. No.247/VD/09 dtd.3.1.2009. Special report has been deposed by him to have been put up by him before S.P. Chamba Shri Chander Sekhar Pandit, who returned it to him for record. 8. PW-6 deposes, that on 2.1.2009 MHC Kailash Chand, handed over to him the sample parcel of the case, copy of seizure memo, NCB form, vide a R.C. No. 1/2009 for being taken to FSL Junga, which he took and deposited with FSL Junga, on 3.1.2009. The receipt regarding deposit of the case property at FSL Junga, has been deposed by him to have been deposited by him with MHC on his return to P.S.Sadar, Chamba. Lastly, he deposes that MHC also handed over to him some other papers which were not checked by him. The receipt regarding deposit of the case property at FSL Junga, has been deposed by him to have been deposited by him with MHC on his return to P.S.Sadar, Chamba. Lastly, he deposes that MHC also handed over to him some other papers which were not checked by him. Since he did not depose qua the specimen seal impression alongwith other articles having been handed over to him by MHC for its onwards transmission to FSL, Junga, hence, this witness was declared hostile and on permission having been accorded to the learned Public Prosecutor on a request having been made by him before the learned trial Court to cross-examine this witness, PW-6 came to be cross-examined and during his cross-examination he denied the suggestion put to him by the learned Public Prosecutor, that specimen seal impression was handed over to him by the MHC. However, he admits that his statement was recorded by the police. Besides, he deposes that statement Mark-B is correctly recorded. 9. PW-7 SI Diwan Chand, deposes that, on, 1.1.2009 constable Yakub Mohammad brought the Ruqua of this case at 4.05 p.m on the basis of which F.I.R. Ext.PW- 7/A was recorded, which has been recorded to be bearing his signatures. He made an endorsement on Ruqua Ext.PW- 7/B, which has been deposed to be made by him in his hand and bearing his signatures. The file was prepared and handed over to Constable Yakub Mohammad for further investigation. Subsequently, the case file as was handed over to him by the SHO for investigation on 4.3.2009. He deposes qua his having recorded the statement of witnesses constable Om Prakash, C. Ghinder Dutt, MHC Kailash Chand, HHC Uttam Chand correctly as per their versions. On completion of investigation he handed over the case file to the SHO for preparing the challan of the case. The report of FSL Ext.PW-7/B has also been deposed to be received by him. 10. PW-8 HC Kailash Chand deposes that on 1.1.2009 Inspector R.P.Jaswal, deposited with him one big parcel, containing 5 kg.& 950 grams, charas duly sealed with 10 seals of seal ‘A’ alongwith sample seal, two sample parcels, duly sealed with seal impression A, having three seals on each alongwith sample seal, NCB forms in triplicate, recovery memo at 5.30 a.m. He deposes that all these articles were entered by him in the Malkhana Register vide Sr. No. 393 dtd. No. 393 dtd. 1.1.2009, copy whereof is Ext.PW-8/A, which has been deposed to be true and correct as per the original register brought by him in Court. On 2.1.2009 he deposes that one sample parcel, sample seal, NCB forms in triplicate, recovery memo, photocopy of F.I.R were sent to FSL, Junga through HHC, Uttam Chand No. 210 vide R.C. No. 1 of 2009, who after depositing the same with the FSL, Junga, returned the receipt to him, on its return. He deposes that none tampered with the case property as it remained with him. The copy of RC is Ext.PW-8/B, which has been deposed to be true and correct as per the original brought by him. 11. PW-9 is the deposition of Inspector P.P.Jaswal, who, too, has deposed in tandem with and in consistency with the deposition of the other witnesses qua the genesis of the prosecution case. 12. On a thorough and threadbare scanning, of the testimonies of the official witnesses, it, emanates that their respective depositions while omitting to convey inter-se or intra-se inconsistencies and contradictions, render their testimonies, both credible and inspiring. The imminent fact, which surges forth, from the factum of each, having deposed in consistency with each other, qua the genesis of the prosecution case, from its inception, comprised, in, the raiding party, (a) carrying out search, seizure and recovery of contraband, from the alleged conscious and exclusive possession of the accused, in, pursuance to his having accorded, his consent to them comprised, in, Annexure PW- 1/A , (b) its weighment, (c) preparation of bulk sample parcel, dispatch of ruqua to the police station, for, (d) recording of an FIR, the lodging of FIR, in, consequence whereto, of special report was dispatched to the Additional S.P, Chamba, (e) deposit of case property with MHC, and, its deposit through PW-6 to FSL, Junga, for its examination, (f) the report of FSL, disclosing the factum of parcels purportedly containing charas to be “Charas”, emphatically and conclusively, hence are proven vital links in the chain of circumstances which formidably connect the accused in the commission of the alleged offence. Learned counsel for the accused/appellant has circumscribed his frontal attack to the impugned judgment rendered by the learned trial Court, on the score of the Investigating officer having omitted to associate independent witnesses in the proceedings relating to search, seizure and recovery of contraband from the alleged and conscious possession of the accused, in the manner, as, disclosed and divulged by the testimonies of each of the prosecution witnesses. However, the non-association of independent witnesses by the Investigating Officer, is, not fatal to the prosecution case, in, as such, as, with there existing no infirmity or vice arising from any inconsistencies or contradictions inter-se or intra-se in the testimonies of official witnesses, rendering their testimonies, to be hence, credible qua each proving each of the links in the chain of circumstances connecting the accused in the commission of the alleged offence, therefore, non-association of independent witnesses by the Investigating Officer, does not afflict the genesis of the prosecution case with fatality. Even if, assuming as deposed by PW-1 a populous habitation was available in the vicinity of the site of occurrence, none the less when, it, was not a case of prior information, rather was a chance recovery, besides given the fact, as, emanating from the uncontroverted testimonies of prosecution witnesses, that, the site of occurrence, being a desolate place and also with the uncontroverted time of recovery being the wee hours of 1.1.2009, when, even if, inhabitants of a proximate habitation, were available, in, the purported vicinity, of the site of occurrence, hence, would have refrained to be joined as witnesses rather would have shown their recalcitrance, does not also imbue, the absence of efforts on the part of Investigating Officer, to, associate independent witnesses, in, the proceedings relating to search, seizure and recovery of contraband, with the vice of lack of impartisanship. Even otherwise the credible testimonies of the official witnesses remains unbenumbed hence lend cogent proof qua the factum of recovery of contraband from the alleged, conscious and exclusive possession of the accused. In aftermath, it has to be held that the non-association of independent witnesses, by the Investigating Officer, does not imbue the prosecution case, with any fatality. 13. Even otherwise the credible testimonies of the official witnesses remains unbenumbed hence lend cogent proof qua the factum of recovery of contraband from the alleged, conscious and exclusive possession of the accused. In aftermath, it has to be held that the non-association of independent witnesses, by the Investigating Officer, does not imbue the prosecution case, with any fatality. 13. The learned counsel for the appellant/accused places reliance upon the testimony of PW-6, who, during the course of his examination in chief, by the learned Public Prosecutor, had feigned ignorance qua the property delivered to him for its onwards transmission to FSL, Junga, hence, when he concerted to belie the prosecution case, qua the sample seal also having come to be delivered to him by the MHC, and, on which non-disclosure by him, an argument was constructed by the learned defence counsel, that the FSL, Junga was constrained or precluded, to, hence tally the seal impression existing on the parcels sent for examination with the sample seal, hence, any opinion rendered by the FSL, Junga on the parcels sent for rendition of an opinion by it, was not qua the property as was allegedly recovered from the conscious and exclusive possession of the accused/appellant, rather is qua some other case property. Hence, the learned counsel for the appellant, submits that the consummate link in the chain of circumstances is weak, hence, ousts the factum of charas having been recovered from the conscious and exclusive possession of the accused. Nonetheless, given the fact that:- A. During his cross-examination by the learned Public Prosecutor he proves the factum of his statement mark B having been correctly recorded, wherein, he has recorded the fact of sample seal having been handed over to him. B. The fact of PW-8 MHC having deposed qua his having handed over the sample seal to PW-6 alongwith other articles for theirs onward transmission to FSL, Junga. C. The imminent disclosure in the report of FSL comprised in Ex.PW-7/D of the chemical examiner having come to tally the seal impression on sample parcel with the seal impression embossed on NCB form, and on such tallying theirs having been found to be compatible. 14. Cumulatively, hence, when it has not been established that the said fact, as, divulged in Ex. 14. Cumulatively, hence, when it has not been established that the said fact, as, divulged in Ex. PW-7/D, is, concocted or invented, an, invincible conclusion which is available for formation is that the opinion as was rendered by the FSL, Junga was qua the very same case property as was allegedly recovered from the exclusive and conscious possession of the accused. In sequel, the contention as urged before this Court by the learned counsel for the appellant that the opinion of FSL comprised in Ex. PW-7/D, for non existence of statement in the deposition of PW-6, of, his being handed over the sample seal alongwith case property, for transmission to FSL, handicapped or deterred the FSL, to, tally the seal impression, as, were existing on the sample parcels, sent to FSL, Junga through PW-6 with the sample seal impression, as, also concomitantly handicapped rendition of an opinion by the FSL, qua the case property being the very same case property as was allegedly recovered from the exclusive and conscious possession of the accused, to be wholly meritless, hence, liable to be disaffirmed. 15. The learned counsel for the accused-appellant had during the course of hearing of the appeal had assailed the findings recorded by the learned trial court on the scores aforesaid. For the reasons having been meted out for dispelling the above contention, hence, when the findings of conviction recorded against the accused/appellant, are founded upon reasons which are grooved in a mature and balanced appreciation of evidence, by the learned trial Court, hence not suffering from any vice of non-appreciation and mis-appreciation of evidence on record. Consequently, the judgment of conviction recorded by the learned trial Court in its entirety does not warrant interference. 16. In view of above discussion, we find no merit in this appeal which is accordingly dismissed, and, the judgment of the learned trial court is affirmed. Record of the learned trial court be sent back forthwith.