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Himachal Pradesh High Court · body

2014 DIGILAW 1061 (HP)

Sunil Kumar v. State of H. P.

2014-08-07

RAJIV SHARMA, SURESHWAR THAKUR

body2014
JUDGMENT : - Sureshwar Thakur, J. The instant appeal, is, directed by the appellant/accused, against the impugned judgment, rendered, on, 2.1.2013, by the learned Special Judge-1, Sirmaur, District at Nahan, H.P., in, Sessions trial No. 25-ST/7 of 2012, whereby, the learned trial Court convicted and sentenced the accused/appellant, to, undergo rigorous imprisonment for a period of 10 years, and, to pay a fine in a sum of Rupees one lac, and, in default of payment of fine, to, undergo simple imprisonment for a period of one year, for, the commission of offence punishable under Section 22 (c) of the Narcotic Drugs and Psychotropic Substances Act, 1985. 2. Brief facts of the case, are, that, on 5.4.2012, a police party headed by PW-8 ASI Prakash Chand, comprising of PW-2 HHC Surinder Pal, left Police Station, Nahan, at about 1.00 a.m. in, connection with routine patrol duty. At about 5 a.m., when they reached at Bus Stand, Nahan, HHC Kirpal Chand and HHC Jai Singh, who were also on patrol duty, met them. On the police party reaching the counter of the bus stand, they found the accused person, present there, and, three bags were lying besides him, on, the ground. On his sighting the police, he got perplexed, and, scared, and, on inquiry, he disclosed, that, he was waiting for the bus, to, go, to, Shimla. The police party checked the bags of the accused, and, the same were found to be containing drugs. In the first bag, 60 paper cartons, each containing 6 strips, of, 24 capsules each, total 8640 capsules of Spasmo Proxyvon, 41 vials of Rexcof cough syrup of 100 ml., and, two packets of Alprazolam tablets, each packet containing 400 tablets, total 800 tablets, were found. On checking, the second bag, two packets of Corex syrup, each packet containing 20 vials, total 40 vial, were recovered. In the third bag, 40 vials of Torex, 5 packets of Tranquite, 17 vials of cofvond, 19 strips of Nemus, 25 injections of Betnovate, one mobile charger, 2 packets of Dispovam, 7 small packets of Vitalic and 6 packets of Riladex, were recovered. The contents of all the three bags, were put back, into, the same bags, and, two parcels were prepared separately, and, were sealed with seal impression ‘D’. The relevant columns of NCB form, Ex. PW-1/C, were updated, and, sample of seal, Ex. The contents of all the three bags, were put back, into, the same bags, and, two parcels were prepared separately, and, were sealed with seal impression ‘D’. The relevant columns of NCB form, Ex. PW-1/C, were updated, and, sample of seal, Ex. PW-2/B, was drawn, and, seal was handed over, to, HHC Kripal Singh. The case property was taken into possession, vide seizure memo, Ex. PW-2/A, in, the presence of HHC Jai Singh, HHG Kripal Singh and PW-2 LHC Surinder Pal. Rukka comprised in Ex. PW-2/C was drawn, and, sent to Police Station, Nahan, through PW-2, on, the basis of which, FIR comprised in Ex. PW-2/D was recorded. The accused was arrested, and, grounds of arrest were conveyed, to, him, vide memo Ex. PW-8/B. PW-8 ASI Prakash Chand, on, his returning, to, the Police Station, presented the case property, before PW-5 ASI Dalip Kumar, Officiating SHO, who, resealed the same with seal impression “L”, and, after updating the relevant columns of the NCB form, issued a certificate of resealing which is comprised in Ex. PW-8/D, and, thereafter, he deposited the same with PW-1 HC Kanwar Singh, in, the Malkhana of the police Station. During the Course of investigation, the case property was sent, to, FSL, Junga, and, report of the Chemical examiner Ex. PW-4/A, was obtained, and, in the report, it was opined that the same contained the drugs as described, in their respective labels. PW-6 Sh. Sunny Kaushal, Drug Inspector, also gave his opinion comprised, in, Ex. PW-6/B, regarding NDPS contents of the seized drugs. 3. On conclusion of the investigation, into the offence, allegedly committed by the accused, report under Section 173 of the Code of Criminal Procedure was prepared, and, presented in the Court. 4. The accused was charged, for, his having committed an offence punishable under Section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985, by the learned trial Court, to, which he pleaded not guilty and claimed trial. 5. In order to prove its case, the prosecution examined 8 witnesses. On closure of prosecution evidence, the statement of accused, under Section 313 of the Code of Criminal Procedure, was recorded, in, which he pleaded innocence and claimed false implication. He also chose, to, lead evidence in defence and examined two witnesses. 6. On appraisal of the evidence, on, record, the learned trial Court, returned findings of conviction against the accused. 7. He also chose, to, lead evidence in defence and examined two witnesses. 6. On appraisal of the evidence, on, record, the learned trial Court, returned findings of conviction against the accused. 7. The accused/appellant, is, aggrieved by the judgment of conviction, recorded by the learned trial Court. The learned counsel for the appellant, has concertedly, and, vigorously contended, that, the findings of conviction, recorded by the learned trial Court, are, not based, on, a proper appreciation of evidence, on, record, rather, they are sequelled by gross misappreciation of the material on record. Hence, he, contends that the findings of conviction, be, reversed by this Court, in, the exercise of its appellate jurisdiction, and, be replaced by findings of acquittal. 8. On the other hand, the Additional Advocate General, has, with considerable force and vigour, contended that the findings of conviction, recorded by the Court below, are, based on a mature and balanced appreciation of evidence on record, and, do not necessitate interference, rather merit vindication. 9. This Court with the able assistance of the learned counsel on either side, has, with studied care and incision, evaluated the entire evidence on record. 10. The first witness, who stepped into the witness box, in, proof of the prosecution case, is, PW-1, HC Kunwar Singh, who, deposed in his deposition, that, on 5.4.2012, ASI Dalip Singh deposited one sealed parcel, sealed with 10 seals, of, seal bearing impression ‘D’, and, resealed with seven seals bearing seals ‘T’ stated to be containing 60 boxes of SPASMO Proxyvon each box containing six strips of 24 capsules, total 8640 capsules, and, 41 vials of REXCOF, two boxes Aplpra Zolan each box containing 400 tablets, total 800 tablets. He further deposes, that, one more sealed parcel sealed with seal bearing impression ‘D’, and, resealed with seal bearing impression T, stated to be containing 40 vials of Corex alongwith samples of seal D and T, and, NCB forms in triplicate deposited in the Malkhana regarding, which he incorporated entries at Sr. Nos. 385/12, extract of which is Ex. PW-1/A, which has been deposed by him to be a true copy of the original register. Nos. 385/12, extract of which is Ex. PW-1/A, which has been deposed by him to be a true copy of the original register. He continues, to, depose that, on, 9.4.2012, he sent the entire aforesaid case property alongwith sample of seal, and, NCB form, in, triplicate to SFSL, Junga, through Constable Ravinder Singh No. 495, vide RC No. 100/12, who, after depositing the same, handed over its receipt to him. Copy of receipt has been deposed to be comprised, in, Ex. PW-1/B and has been deposed to be the true copy of the original. He deposes that so long as the case property remained in his custody, he did not tamper with the same. He deposes that at the time of sending the aforesaid case property, to, SFCL, Junga, he filled up the relevant columns of NCB form Ex. PW-1/C. He further deposes that the third bag of military green colour, stated to be containing medicines of different description, and, clothes of the accused alongwith articles, taken into custody, during his personal search, were, deposited with him, on, 9.4.2012 by ASI Parkash Chand. Entry qua its deposit, is, deposed to be incorporated at Sr. No. 362 of 2012. 11. PW-2 HHC Surender Pal, deposes, qua, the genesis of the prosecution story, as, elucidated in extenso hereinabove. During the course of his examination-in-chief, he, has proved Ex. PW-2/A. He also proved both Ex. P-1 and Ex. P-2, to be containing the psychotropic substances, as, were recovered from the parcels, in, which they were kept. Moreover, he also proved Ex. P-9 to be containing clothes, and, other medicines, as, detailed in the seizure memo and has also, proven the fact of the bag having been recovered from the accused. Moreover, during the course of the recording of his deposition, in, his examination-in-chief, he deposes that the Investigating Officer, updated the NCB form Ex. PW-1/C, on, the spot, and, had drawn sample of seal Ex. PW-2/B, and, thereafter handed over the seal to him. Rukka, Ex. PW-2/C has been deposed to be scribed by the Investigating Officer. Thereafter, the Investigating Officer handed over the same, to, him, which was delivered by him to ASI Dalip Singh and, on the basis of which, FIR Ex. PW-2/D was recorded. After making an endorsement Ex. PW-2/B, and, thereafter handed over the seal to him. Rukka, Ex. PW-2/C has been deposed to be scribed by the Investigating Officer. Thereafter, the Investigating Officer handed over the same, to, him, which was delivered by him to ASI Dalip Singh and, on the basis of which, FIR Ex. PW-2/D was recorded. After making an endorsement Ex. PW-2/E on the rukka, he handed over the case file to him, which, he delivered to ASI Parkash Chand on the spot. 12. PW-3 Constable Madan Dutt, deposes that Ex. PW-3/A , copy of DD 36, Ex. PW-3/B, and, copy of DD No. 37, Ex. PW-3/C, are, the true copies of the original report, recorded in the daily diary. 13. PW-4 Inspector Liaq Ram, deposes that, after completion of investigation, and, on the receipt of report of chemical examiner, Ex. PW-4/A, he prepared the challan in the case, which bears his signatures. 14. PW-5 ASI Dalip Kumar, deposes that on 5.4.2012, he was officiating as SHO, in, the Police Station. ASI Prakash Chand has been deposed by him to have brought the accused, and, the case property before him, in, the police station. The case property has been deposed to be comprising of two sealed parcels, which were sealed with 10 seals, bearing impression D. He deposes that he resealed both the parcels with seven seals, bearing impression T, and, thereafter deposited the case property, in, the Malkhana, alongwith NCB form Ex. PW-1/C, after updating its relevant columns. Sample of seal Ex. PW-5/A has been deposed to have been drawn by him. Alongwith the aforesaid case property, the samples of seal Ex. PW-5/A, and, Ex. PW-2/B, were also deposited by him, in, the Malkhana. Prior to this, at 7.20 a.m. LHC, Surender Pal has been deposed to have delivered a rukka Ex. PW-2/C to him, on, the basis of which he recorded the FIR Ex. PW-2/D, which bears his signatures. He deposes that after registration of the case, he made his endorsement Ex. PW-2/E on the rukka, and, handed over the case file to LHC Surender Pal, for its being delivered to the Investigating Officer on the spot. 15. PW-6 Shri Sunny Kaushal, Drug Inspector, deposes that on 28.4.2012, the police vide letter Ex. PW-6/A, sought his opinion regarding the NDPS contents, present in the seized drugs. On his perusing the seizure memo, he gave his opinion comprised in Ex. 15. PW-6 Shri Sunny Kaushal, Drug Inspector, deposes that on 28.4.2012, the police vide letter Ex. PW-6/A, sought his opinion regarding the NDPS contents, present in the seized drugs. On his perusing the seizure memo, he gave his opinion comprised in Ex. PW-6/B, which is in his hand and bears his signatures. 16. PW-7 Constable Ravinder Kumar, deposes that on 9.4.2012, MHC Kunwar Singh handed over two sealed parcels, which were sealed with 10 seals, bearing impression ‘D’, and, 7 seals bearing impression ‘T’, alongwith NCB form, in, triplicate, samples of seals, and, a docket vide RC No. 100/2012, dated 9.4.2012, to him, which he delivered in FSL, Junga, on, the same day, and, obtained its receipt, on, RC, which on return, to, the police Station, was handed over by him, to, the MHC. He further deposes, that, during the period, the aforesaid case property remained in his custody, he did not tamper with the same. 17. PW-8 ASI Prakash Chand, has deposed, in, unanimity, and, corroboration to the version, qua the genesis of the prosecution case, spelt out in extenso, at the outset. During the course of his cross-examination, he has deposed that, during the proceedings, people had gathered, on, the spot, yet he omitted to disclose their number. 18. The entire genesis of the prosecution case, from its inception, comprised in the search, seizure and recovery of the psychotropic substance, from the bag, which was carried by the accused. Ex. P-9, proven by the testimony of PW-2, till the rendition of an opinion by FSL, Junga comprised ,in, Ex. PW-4/A stands proved by the unequivocal testimonies of the prosecution witnesses especially when they depose in unison and harmony with each other. Hence, when their testimonies omit to unfold any material discrepancies or stark and blatant, inter-se or intrase contradictions, therefore, their testimonies are to be imputed truth. In sequel, when this Court proceeds, to, impute truth to the testimonies of the official witnesses, qua, the factum of recovery of the psychotropic substances, from the bag, as such, it is to be concomitantly concluded that cogent and resounding proof, exists on record of the accused being in conscious and exclusive possession of psychotropic substances, at the relevant time. Obviously, then this court is leaned to draw, no conclusion other than the one that, the guilt of the accused, has come to be conclusively established. Obviously, then this court is leaned to draw, no conclusion other than the one that, the guilt of the accused, has come to be conclusively established. However, during the course of hearing of this appeal, the learned counsel for the appellant has concerted to with grave importunacy and fervor, urged before this Court that given the fact as existing in the cross-examination of the Investigating Officer, of, a large number of people having gathered on the spot, during the course when the proceedings, relating to search, seizure and recovery of psychotropic substances, from the alleged and conscious possession of the accused, were, underway. As such, omission on the part of Investigating Officer, to associate them or to join them renders the entire prosecution case to be flawed. Further, the said omission on the part of Investigating Officer, to, associate or join such witnesses, was to smother the truth qua the genesis of the prosecution case and that it, hence, acquires no hue of impartisanship and is incredible. Besides it has been argued by the learned counsel appearing for the appellant, while relying upon the testimony of DW-1 Assistant Adda Incharge, HRTC, conveying the fact of on the relevant date DW-2, being on duty as emanating from attendance register Ex. DA, which testimony has been contended to have attained corroboration from the testimony of DW-2, qua his presence at the site of occurrence at the time contemporaneous to carrying out the proceedings relating to the search, seizure and recovery of psychotropic substances from the conscious and exclusive possession of the accused. Therefore, the said fact has been relied upon by him to nail a submission that given the presence of DW-2 at the site of occurrence, omission on the part of the Investigating Officer, to, also associate him, in, the proceedings, was a willful omission or a deliberate lapse, and was concerted to, smother the truth qua the genesis of the occurrence. However, both the submissions, as, addressed before this Court by the learned counsel for the appellant, have no vigor and sinew. Hence, this court is constrained to discountenance them. However, both the submissions, as, addressed before this Court by the learned counsel for the appellant, have no vigor and sinew. Hence, this court is constrained to discountenance them. The submission of the learned counsel for the appellant, anvilled upon the existence of a statement in the deposition of the Investigating Officer, comprised in, his cross-examination, of some people having gathered on the spot, and, the Investigating Officer having omitted to join them, as such, rendering the prosecution case to be flawed, is, of no consequence, in, as much, as, it does not emanate, during the course of the recording of the deposition of the Investigating Officer, that, people had gathered, at the site of occurrence, at the time contemporaneous to the recovery of psychotropic substance, from the alleged and conscious possession of the accused, as such, in absence of apposite evidence, hence, conveying the fact that people had gathered on the spot at the time contemporaneous to the carrying out of the proceedings relating to search, seizure and recovery of the psychotropic substance from the conscious and alleged possession of the accused, rather lends impetus, to, the conclusion that, hence, at the apposite stage no witnesses were available, and as such, there was no consequent, deliberate or willfull omission on the part of the Investigating Officer to join them, theirs having gathered not at a time contemporaneous to the carrying out of the proceedings, rather theirs having gathered/ collected subsequent to the commencement of the proceedings. Obviously, then theirs non-joining or non-association is rendered to be neither willful nor deliberate, as also inconsequential, as, they were not present there, at, the apposite stage. Obviously, then theirs non-joining or non-association is rendered to be neither willful nor deliberate, as also inconsequential, as, they were not present there, at, the apposite stage. The testimonies of both DW-1 and DW-2 sought to be relied upon by the learned counsel for the appellant, to, concert to urge a submission that given the presence of DW-2 at the opposite stage, the Investigating Officer omitted to join him, in, the apposite proceedings, relating to recovery of Psychotropic substance from the alleged and conscious and exclusive possession of the accused was deliberate, hence, his non joining is fatal to the prosecution case is highly misplaced as given the testimony of DW-1 in his examination-in-chief, that though, Ex DA which, is, copy of attendance register, disclosing the factum of DW-2, being present at the apposite stage, yet his having deposed in his cross examination of it not divulging or displaying the date, month and year of its recording. Consequently, for the lack of an imminent reflection in it of the date month and year when the presence of DW-2 was marked therein, as such, the marking of presence of DW-2, cannot, be construed to be his presence on the fateful day. Therefore, when apart from the oral testimony of DW-2 qua his being present at the site of occurrence on the fateful day, in, the apposite best evidence comprised in a reflection thereof, in, the attendance register Ex. DA which however, omits to depict with precision the date, month and year of the recording of his presence on the fateful day. Obviously, omission in it, to, hence, portray with precision the date, month and year, of the presence of DW-2 at the apposite stage, as such, nullifies the effect of the oral evidence of DW-2 qua his being present on the fateful day at the site of occurrence. Consequently, in aftermath, it cannot but be concluded that given the absence of DW2, at the relevant time, there was no lapse or omission on the part of the Investigating Officer to join him in the apposite proceedings. As such, the impugned judgment does not suffer from any vice, absurdity or perversity of the misappreciation and non appreciation of the evidence. Consequently reinforcingly, it can be formidably concluded, that, the findings of learned trial Court, are, well merited, and, do not merit interference. 31. As such, the impugned judgment does not suffer from any vice, absurdity or perversity of the misappreciation and non appreciation of the evidence. Consequently reinforcingly, it can be formidably concluded, that, the findings of learned trial Court, are, well merited, and, do not merit interference. 31. 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.