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2014 DIGILAW 1203 (HP)

Lachho Ram v. State of Himachal Pradesh

2014-09-05

RAJIV SHARMA

body2014
JUDGMENT Rajiv Sharma, J. This appeal is instituted against judgment dated 29.2.2012 rendered by learned Special Judge, Chamba, Division Chamba, Himachal Pradesh in Sessions Trial No. 27/2010 whereby appellants/ accused (herein after referred to as 'accused' for brevity sake) were tried and charged for offences under Section 20 of the Narcotic Drugs and Psychotropic Substance Act, 1985 (herein after referred to as 'Act’ for brevity sake) and accused No.1 was sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs. 50,000/- and accused No. 2 and 3 have been convicted to undergo rigorous imprisonment for four years and also pay a fine of Rs. 40,000/- each and in default of payment of fine, to further undergo rigorous imprisonment for 5 months, 4 months respectively. 2. Case of the prosecution in a nutshell is that on 15.3.2010, H.C. Kartar Singh alongwith other police officials had gone towards Pukhri, Badoh and Kalhel for patrolling in a vehicle bearing No. HP01C00319. At about 2.15 a.m., three persons were seen walking on the road, who on seeing the lights of the vehicle got perplexed. On suspicion police party stopped the vehicle and apprehended all the three accused. H.C. Kartar Singh apprised the accused of their legal right to be searched before a Magistrate or a Gazetted Officer. Accused(s) were alleged to have consented to give search to the police party. Since no independent witness was available, taxi driver accompanying the police party and H.C. Varinder Singh were associated as independent witnesses. Search of the bags held by three accused yielded the recovery of Charas i.e. 2 kg 800 gms from accused Lachho Ram, 2 kg from Tula Ram and 2 kg from Chatro Ram. The Charas was seized vide seizure memo Ex. PW.1/F. The contraband so recovered was put in separate parcels and each parcel was sealed with three seal impressions of seal ‘T’. Impression of seal was obtained on a cloth Ex. PW.1/E. PW-11 produced the accused and the contraband before the S.H.O. Hans Raj. He resealed the contraband with seal impression ‘O’. Samples were sent to the Chemical Examiner State Forensic Science Laboratory Junga. Investigation was completed and challan was put up after completion of all codal formalities. 3. Prosecution examined 11 witnesses. Accused were also examined under Section 313 of the Criminal Procedure Code. They pleaded denial simpliciter. He resealed the contraband with seal impression ‘O’. Samples were sent to the Chemical Examiner State Forensic Science Laboratory Junga. Investigation was completed and challan was put up after completion of all codal formalities. 3. Prosecution examined 11 witnesses. Accused were also examined under Section 313 of the Criminal Procedure Code. They pleaded denial simpliciter. Accused were convicted and sentenced as discussed herein above. 4. Mr. Lakshay Thakur, Advocate has vehemently argued that the prosecution has failed to prove its case against the accused. 5. Mr. R.P. Singh, Assistant Advocate General has supported the judgment of the learned trial Court. 6. I have heard the learned counsel for the parties and also gone through the record carefully. 7. PW-1 H.C. Varinder Singh has deposed that he alongwith H.C. Aslam Mohamad, Constable Rajesh Kumar and IO Kartar Singh was coming back towards Chamba when at about 2.15 a.m. as they reached one km ahead from Kandla towards Chamba, near the bridge, three persons were seen going towards Koti. One was having a bag on his shoulder and two were having bags in their hands. On seeing the police they got perplexed and tried to run away. All the three were apprehended. They were apprised of their legal right to be searched before a Magistrate or a Gazetted Officer. They consented to be examined/ searched by the police party. Thereafter, the bags carried by the accused were searched. Charas was found in the same, which was weighed. Charas recovered from accused No.1 was found to be 2.8 kg. Similarly, Charas recovered from accused No. 2 was found to be 2 kg and from accused No. 3 also it was found to be 2 kg. Recovered Charas was parceled in separate parcels and all the parcels were sealed with three seals of seal ‘T’. NCB form was filled in. Charas was taken into possession vide memo Ex. PW.1/F. H.C. Kartar Singh prepared Ruka and he handed over the same to Mohamad Aslam for being delivered to Police Station Chamba, for registration of the case. Copy of Ruka was also sent by the I.O. through constable Mohamad Aslam for information to the Superintendent of Police. I.O. also prepared spot map. In his cross-examination, he has deposed that he had given personal search to the accused. He denied the suggestion that there was locality near Kandla Pul. Copy of Ruka was also sent by the I.O. through constable Mohamad Aslam for information to the Superintendent of Police. I.O. also prepared spot map. In his cross-examination, he has deposed that he had given personal search to the accused. He denied the suggestion that there was locality near Kandla Pul. Volunteered that locality was at a distance of about 1 ½ kms. Parcels were stitched at the spot with the help of a needle. Weights were of 50 gms, 100 gms, 200 gms, 500 gms, 1 kg, 2 kg and 5 kg. In case of Charas recovered from Lachho Ram, it was weighed twice and in case of Tula Ram and Chatro, it was weighed once. 8. PW-2 Rakesh Kumar also deposed the manner in which the accused were apprehended and recovery and seizure procedure was completed at the spot. He was declared hostile and was cross-examined by the learned Public Prosecutor. He has admitted that he was with the police officials on 15.3.2010. He has also admitted that police recorded his statement. They noticed three persons going on the road. On seeing police, they got perplexed and tried to run away. He also admitted in his statement that on suspicion, these three persons were nabbed by the police. He also admitted that there was no habitation near the place of occurrence. He also admitted that 2 kg Charas was recovered from Tula Ram, 2 kg from Chatro and 2.8 kg from Lachho Ram. 9. PW-3, Rajesh Kumar Constable has supported the version of PW-1. 10. PW-4 Madan Singh C. No. 432 has deposed that at about 6.30 a.m., H.C. Kartar Singh has produced three parcels sealed with three seals of seal impression ‘T’, out of which one was said to be containing 2.8 kg Charas recovered from Lachho Ram and other two containing 2 kg Charas recovered from Tula Ram and Chatro Ram each, for resealing before S.H.O./ A.S.I. Hans Raj. S.H.O. Hans Raj resealed three parcels with seal impression ‘O’. Seal impression ‘O’ was also affixed on NCB form and specimen of seal impression was taken on reverse of specimen of seal ‘T’. 11. PW-5 Constable Rajesh Kumar, is a formal witness. 12. PW-6 Pawan Kumar has deposed that A.S.I. /S.H.O. Hans Raj deposited three parcels duly sealed alongwith specimen of seal impression ‘T’ and ‘O’, NCB form (triplicate), recovery memo, for being kept in the Malkhana. 11. PW-5 Constable Rajesh Kumar, is a formal witness. 12. PW-6 Pawan Kumar has deposed that A.S.I. /S.H.O. Hans Raj deposited three parcels duly sealed alongwith specimen of seal impression ‘T’ and ‘O’, NCB form (triplicate), recovery memo, for being kept in the Malkhana. He entered the same in the Malkhana register. Thereafter, same were sent to State Forensic Science Laboratory Junga with all the requisite documents through constable Anil Kumar. 13. PW-7 Anil Kumar has deposed that on 16.3.2010, MHC Pawan Kumar handed over to him three parcels each sealed with three seals of seal ‘T’ and two seals of seal ‘O’ alongwith NCB form and envelope for being deposited in FSL Junga and he delivered the same to FSL Junga. 14. PW-8 Hans Raj has deposed that at about 5.30 a.m., Mohammad Aslam Constable No. 311 brought one Ruka. He made endorsement on the Ruka. At about 6.30 a.m. HC Kartar Singh brought case property before him. He resealed all the three parcels by affixing two seal impressions of seal ‘O’ on each parcel in the presence of C. Madan. 15. PW-9 is a formal witness. 16. PW-10 Mohamad Aslam deposed the manner in which accused were apprehended and Charas was recovered from them. H.C./I.O. has written the Ruka and handed over the same to him at 3.30 a.m. for being delivered at Police Station Chamba. He delivered the same at Police Station Chamba at 5.30 a.m. He has denied the suggestion that there were houses near Kandla Pul. 17. PW-11 H.C. Kartar Singh was the I.O. He has deposed the manner in which accused were apprehended and search and seizure process was completed. According to him, since no independent witness was available, Taxi driver and H.C. Varinder Singh were associated as witnesses. He prepared consent memo of the accused. Search was carried out. Charas was recovered from the accused persons. He prepared NCB form and filled in the same in triplicate. As per him, sealing was completed as per law. Charas so recovered was weighed. Ruka was prepared and it was sent through Mohamad Aslam for being delivered at Police Station Chamba, for registration of FIR. He also prepared the spot map. 18. What emerges from the discussion made herein above is that accused were apprehended by the police on 15.3.2010 at about 2.15 a.m. They were carrying Charas. It was weighed. Ruka was prepared and it was sent through Mohamad Aslam for being delivered at Police Station Chamba, for registration of FIR. He also prepared the spot map. 18. What emerges from the discussion made herein above is that accused were apprehended by the police on 15.3.2010 at about 2.15 a.m. They were carrying Charas. It was weighed. Accused No.1 was carrying 2.8 kg Charas while the other two accused were carrying 2 kg Charas each. They were apprised of their right to be searched before a Magistrate or before a Gazetted Officer or by the police officials. Accused have opted to be searched by the police officials. They were searched. Sealing process was completed in accordance with law. IO sent Ruka through constable Mohamad Aslam. FIR was registered on the basis of said Ruka. IO produced the contraband and the accused persons before the S.H.O. who in turn has resealed the parcels and deposited the same with MHC. Pawan Kumar entered the same in the Malkhana Register. He sent the contraband to Forensic Science Laboratory Junga through constable Anil Kumar. He deposited the same with FSL Junga. Case property was not tampered as per statement of PW-7 during the time it remained in his possession. According to Ex. PA, contraband was found to be Charas. 19. Mr. Lakshay Thakur, Advocate has vehemently argued that no independent witness has been associated by the police. Accused were nabbed at about 2.15 a.m. It was an isolated place. According to PW-1, Varinder Singh, locality was at a distance of about 1 ½ kms from the spot. Since no independent witness was available, police have associated Rakesh Kumar, Taxi driver. He has admitted in his cross-examination carried out by the learned Public Prosecutor that there was no habitation near the place of occurrence. PW-10, Mohamad Aslam has denied the suggestion that there were houses near the Kandla Pul. PW-11 H.C. Kartar Singh has categorically deposed that since no independent witness was available at the spot, Taxi driver and H.C. Varinder Singh were associated as witnesses. 20. Mr. Lakshay Thakur, Advocate has also argued that PW-1 Varinder Singh is a stock witness. However, merely that PW-1 has appeared as witness in another case will not make his version doubtful. Non-production of seal would not affect the case of the prosecution since the contraband has reached the Forensic Science Laboratory, intact. 21. 20. Mr. Lakshay Thakur, Advocate has also argued that PW-1 Varinder Singh is a stock witness. However, merely that PW-1 has appeared as witness in another case will not make his version doubtful. Non-production of seal would not affect the case of the prosecution since the contraband has reached the Forensic Science Laboratory, intact. 21. It is a settled law by now that conviction can be based on the statements made by the official witnesses if the same inspire confidence and are consistent. Statements of the official witnesses are consistent and there are no major contradictions. There is proper appreciation of evidence by the learned trial Court and this Court will not interfere in the well reasoned judgment of learned trial Court dated 29.2.2012. 22. In view of discussion and analysis made hereinabove, there is no merit in the appeal and the same is dismissed. Pending applications, if any, are also disposed of.