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Himachal Pradesh High Court · body

2014 DIGILAW 1195 (HP)

Uttam Chand v. State of Himachal Pradesh

2014-09-05

RAJIV SHARMA, SURESHWAR THAKUR

body2014
JUDGMENT Per Justice Rajiv Sharma, J. This appeal is instituted against the judgment dated 1.12.2011 rendered by the Special Judge, Mandi in Sessions Trial No. 20 of 2011 whereby the appellant accused (hereinafter referred to as the “accused” for convenience sake), who was charged with and tried for offence punishable under section 20 of the Narcotic Drugs and Psychotropic Substance Act, 1985 has been convicted and sentenced to undergo rigorous imprisonment for a period of fourteen years and to pay a fine of Rs. 1,40,000/- and in default of payment of fine, he was further directed to undergo simple imprisonment for a period of six months for the commission of offence under section 20 (b) (ii) (C) of the Narcotic Drugs and Psychotropic Substance Act. The period of detention undergone by the accused was ordered to be set off as per provisions contained under section 428 of the Code of Criminal Procedure. 2. Case of the prosecution, in a nutshell, is that PW-13 ASI Ram Lal, PW-1 LHC Narpat, Constable Jatinder and PW-2 Dhameshwar were present at Batala Wali Road between Karsog and Kelodhar on 19.11.2010 in the official vehicle bearing registration No.HP-07A-0282. Accused came from Kelodhar towards Karsog carrying a black coloured bag. Accused returned and started walking briskly on seeing the police. Police became suspicious. Accused was apprehended by the police at a distance of 20 meters. No independent witness was available. Efforts were made to join the occupants of the vehicle crossing the road. However, none agreed. LHC Narpat and Constable Jitender were associated as witnesses. Accused revealed his name as Uttam Chand son of Dhari Ram on inquiry. Personal search was given to the accused by the members of the police party. Bag being carried by the accused was bearing word “style”. Bag Ex.P-2 was checked. It contained black coloured substance in the form of sticks and spheres. Substance was found to be cannabis. It weighed 5 kgs. It was put in the bag from which it was recovered. Bag was sealed in a cloth parcel with 12 seal impressions of seal ‘S’. Seal impression was taken on a separate piece of cloth and one such impression was Ex.PW-1/B. NCB-1 form Ex.PW-13/A was filled in triplicate. Seal impression was put on NCB-1 form. Seal was handed over to Narpat after use. Seizure memo Ex.PW-1/C was prepared. Rukka Ex.PW-13/B was also prepared on the spot. Seal impression was taken on a separate piece of cloth and one such impression was Ex.PW-1/B. NCB-1 form Ex.PW-13/A was filled in triplicate. Seal impression was put on NCB-1 form. Seal was handed over to Narpat after use. Seizure memo Ex.PW-1/C was prepared. Rukka Ex.PW-13/B was also prepared on the spot. It was handed over to constable Dhameshwar Singh. Constable Dhameshwar Singh handed over rukka to PW-14 Parkash Chand. He recorded FIR Ex.PW-14/A. ASI Ram Lal handed over parcel, sample seal ‘S’ and NCB-1 form to PW-14 Parkash Chand on the same day. Parkash Chand resealed the parcel with nine impressions of seal ‘B’. He prepared resealing memo Ex.PW-9/A. He handed over parcel and NCB-1 form, sample seals to PW-9 MHC Kamal Kant on the same day. MHC made an entry in the Malkhana Register. Special report Ex.PW-5/A was prepared and it was handed over to PW-4 Munish Kumar with the direction to hand it over to Deputy Superintendent of Police. Constable Munish Kumar handed over the special report to PW-5 Raj Kumar, Deputy Superintendent of Police on 20.11.2010. Parcel, sample seal and NCB-1 form were sent for analysis to Forensic Science Laboratory, Junga through PW-3 Constable Ravinder Kumar. Constable Ravinder Kumar deposited all the articles in safe condition at Forensic Science Laboratory, Junga and handed over the receipt to MHC on return. Result of analysis Ex.PW-11/A was obtained. Police investigated the case and the challan was put up in the court after completing all the codal formalities. 3. Prosecution examined as many as fourteen witnesses in all to prove its case against the accused. Statement of accused under Section 313 Cr.P.C. was recorded. He denied the case of the prosecution in entirety. Learned trial Court convicted and sentenced the accused, as noticed hereinabove. 4. Ms. Neha Scott, Advocate vice Mr. Anoop Chitkara has vehemently argued that the prosecution has miserably failed to prove its case against the accused. 5. Mr. M.A. Khan, learned Additional Advocate General has supported the judgment passed by the trial Court. 6. We have heard the learned counsel for the parties and have gone through the record carefully. 7. PW-1 LHC Narpat has testified that on 19.11.2010 at about 1.35 P.M., he was present alongwith ASI Ram Lal, Constable Rajinder and Constable Dhameshwar at Batala Wali Road between Karsog and Kelodhar. Accused was coming from Karsog towards Kelodhar. 6. We have heard the learned counsel for the parties and have gone through the record carefully. 7. PW-1 LHC Narpat has testified that on 19.11.2010 at about 1.35 P.M., he was present alongwith ASI Ram Lal, Constable Rajinder and Constable Dhameshwar at Batala Wali Road between Karsog and Kelodhar. Accused was coming from Karsog towards Kelodhar. He started walking briskly on seeing the police party. Police apprehended him. The place was lonely and deserted and no independent witness was available. ASI Ram Lal stopped the vehicles and requested the driver and conductor to become the witness. However, none agreed. ASI Ram Lal associated him and Constable Jitender. Police gave their personal search to the accused. Accused was carrying a black coloured bag. Bag was containing black coloured substance in the form of sticks and spheres. The substance was found to be cannabis. It was found to be five kilograms. Search and seizure was conducted as per law. Cannabis was seized vide memo Ex.PW-1/C. Rukka was prepared on the spot. it was handed over to Constable Dhameshwar Singh with the direction to carry it to the Police Station, Karsog. In his cross-examination, he has deposed that they reached at Rohanda at about 9.00 A.M. He did not remember whether they had stopped at any other place or not. He has denied that there was no place called Batala Wali Road. The road was visible upto a distance of about 15-20 meters on both the sides. They were in uniform. He was not aware about the distance of the village from the spot. There was a village behind the place of Nakka. He has denied the suggestion that there were 20-25 houses on the road at Batala Wali. He has also denied the suggestion that column Nos. 1 to 8 were not filled in by ASI Ram Lal. 8. PW-2 Constable Dhameshwar Singh has deposed the manner in which accused was apprehended and search and seizure memo was completed on the spot. In his cross-examination, he has deposed that the road was visible upto the distance of 200-250 meters. He did not know the distance of residential village from the spot. There were houses at Sanarli. However, there were no houses on the spot. He did not know how many persons were asked to be witnesses by the Investigating Officer. In his cross-examination, he has deposed that the road was visible upto the distance of 200-250 meters. He did not know the distance of residential village from the spot. There were houses at Sanarli. However, there were no houses on the spot. He did not know how many persons were asked to be witnesses by the Investigating Officer. He was not aware whether any notice was served by the Investigating Officer upon the witnesses or not. 9. Statements of PW-3 Constable Ravinder Kumar, PW-4 Manish Kumar, PW-5 Raj Kumar, PW-6 Ram Lal, PW-7 Om Prakash, PW-8 Jai Singh, PW-9 Kamal Kant, PW-10 Vijay Kumar, PW-11 Amar Chand and PW-12 are formal in nature. 10. PW-13 ASI Ram Lal was the Investigating Officer. According to him, accused was carrying a black coloured bag on his left shoulder. When the accused started walking briskly on seeing the police party, they became suspicious. Accused was apprehended by him with the help of accompanying police party. It was a lonely and deserted place and no independent person was available. He stopped the vehicles and requested the driver and conductor to be the witness. However, none agreed. In these circumstances, he associated Narpat and Jitender as witnesses. The bag was searched. It was found containing black coloured substance in the form of sticks and spheres. NCB-1 form Ex.PW-13/A was filled in triplicate on the spot. Cannabis was seized vide seizure memo Ex.PW-1/C. Rukka Ex.PW-13/B was prepared. It was sent to Police Station through Constable Dhameshwar Singh with the direction to carry it to the Police Station, Karsog. In his cross-examination, he has deposed that accused came after 35-40 minutes of their arrival on the spot. They checked the vehicles in the meantime. He did not remember the details of the vehicles checked by them. He did not remember whether they were standing on the lower side or upper side of the road. He was not aware about the distance between village Batala Wali and the spot. He stopped 4-5 vehicles within a period of 10-15 minutes from the apprehension of the accused. He did not issue any written notice to any person. He has deposed that he could direct any person to become witness. 11. PW-14 Prakash Chand has deposed that on 19.11.2010, Constable Dhameshwar Singh brought rukka Ex.PW-1/B to the Police Station. He stopped 4-5 vehicles within a period of 10-15 minutes from the apprehension of the accused. He did not issue any written notice to any person. He has deposed that he could direct any person to become witness. 11. PW-14 Prakash Chand has deposed that on 19.11.2010, Constable Dhameshwar Singh brought rukka Ex.PW-1/B to the Police Station. ASI Ram Lal handed over one parcel sealed with 12 impressions of seal ‘S’ alongwith sample seal ‘S” and NCB-1 form in triplicate on the same day. He obtained seal impression on separate pieces of cloths vide seal impression Ex.PW-14/B. He filled in columns No. 9 – 11 of NCB-1 form Ex.PW-13/A. He prepared the memo of resealing Ex.PW-9/A. He handed over both the parcels, NCB-1 form, sample seals to MHC Kamal Kant on the same day with direction to deposit the same in Malkhana. 12. According to PW-11/A, tests performed indicated the presence of cannabinoids including the presence of tetrahydrocannabinol. The microscopic examination indicated the presence of Cystolithic hairs. Charas is a resinous mass. 13. Ms. Neha Scott, vice counsel for the accused has vehemently argued that the prosecution has not examined any independent witness at the time of arrest and seizure of the accused. 14. We have gone through the statements of PW-1 Narpat, PW-2 Dhameshwar and PW-13 Ram Lal. According to PW-1 Narpat, the place where the accused was apprehended was lonely and deserted and no independent witness was available. There was no village near the spot. The village was behind the place of Nakka. He has denied the suggestion that there were 20-25 houses on the road at Batala Wali. PW-2 Dharmeshwar Singh has also deposed that the place where the accused was apprehended was lonely and deserted and no independent witness was available. ASI Ram Lal stopped the vehicles and requested the occupants to be witness. However, they refused. In these circumstances, constable Jitender and Narpat were associated. Similarly, PW-13 ASI Ram Lal has deposed that the accused was apprehended by him at lonely and deserted place. No independent witness was available. He requested the driver and conductor to be witness. However, they refused. He could not see any village from the spot. 15. What emerges from the statements of these witnesses is that the place where the accused was apprehended, was lonely and deserted and no independent witness could be associated. No independent witness was available. He requested the driver and conductor to be witness. However, they refused. He could not see any village from the spot. 15. What emerges from the statements of these witnesses is that the place where the accused was apprehended, was lonely and deserted and no independent witness could be associated. It is settled law that the statements of the police officials can be believed, if the same are natural, consistence and inspire confidence. In the instant case, accused has been apprehended with five kgs of cannabis. Search and sealing process was carried strictly as per law. PW-13 ASI Ram Lal has prepared the rukka and sent it to the Police Station. He has filled in relevant columns of NCB-1 form. Remaining columns 9 to 11 were filled in by PW-14 Prakash Chand. The contraband was deposited with the MHC. The same was sent to Forensic Science Laboratory, Junga. The sample was intact and the Forensic Science Laboratory, Junga after verifying the seals has conducted the necessary chemical test to determine whether it was contraband. On analysis, contraband was found to be Charas. 16. Accordingly, in view of the analysis and discussion made hereinabove, the prosecution has proved its case to the hilt that the accused was found in conscious possession of 5 kgs of cannabis at the time when he was arrested. The Special Judge has rightly convicted and sentenced the accused vide judgment dated 1.12.2011 and the judgment passed by the Special Judge does not warrant any interference. 17. Consequently, the appeal is dismissed.