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2014 DIGILAW 135 (HP)

Ram Chand @ Nitu v. State of H. P.

2014-02-28

DHARAM CHAND CHAUDHARY

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JUDGMENT : - Dharam Chand Chaudhary, Judge (Oral) Judgment dated 25.7.2012 passed by learned Special Judge, Kullu in Sessions Trial No. 48 of 2010 is under challenge before this Court in the present appeal. 2. The appellant, who is a convict and has been sentenced to undergo rigorous imprisonment for four years and also to pay Rs.40,000/-as fine for the commission of offence under section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, hereinafter referred to as “the Act” in short, has assailed the legality and validity of the impugned judgment on the grounds, inter-alia, that the prosecution did not associate the independent witnesses intentionally and deliberately, which allegedly goes to very root of the case, particularly when there is serious dispute qua the place of search and seizure, which as per the prosecution case though is Chhinni Nallah, however, in the evidence as has come on record by way of testimony of PW-2 Constable Megh Singh, it is Fojal Nallah. On account of procedural irregularities and also there being no cogent and reliable evidence with regard to the recovery of the contraband, allegedly Charas, from the physical and exclusive possession of the accused, he could have neither been convicted nor sentenced. 3. Record reveals that a police party headed by AsI Jai Lal proceeded on patrol duty in the early morning on 13.5.2010 towards Patlikuhal. Rapat Ext. PW1/A to this effect came to be entered in the Rojnamcha. The police party, when allegedly was at Chhinni Nallah, spotted the accused coming from opposite direction with a rucksack on his back. On noticing the vehicle, being occupied by the police party, he turned behind and proceeded towards Fojal Nallah. On suspicion, he was nabbed at a distance of 15 feet by the police party. His antecedents were verified. On suspicion of having some narcotic drugs, he was apprehended. PW7 HHC Raj Kumar, who was on the wheel of the police vehicle, was deputed to visit nearby place(s) and to bring some independent person to witness the search and seizure. PW7 accordingly went in search of independent person, however, returned after about 10 minutes and told the I.O. that there was no habitation nearby and as such no one from the locality was available for being associated as a witness. PW7 accordingly went in search of independent person, however, returned after about 10 minutes and told the I.O. that there was no habitation nearby and as such no one from the locality was available for being associated as a witness. On this, PW-8 ASI Jai Lal decided to conduct the search of the accused in the presence of police officials, who are PW-2 Constable Megh Singh and PW-7 HHC Raj Kumar. Consent of the accused was obtained vide memo. Ext. PW7/A. The Investigating Officer offered himself to be searched by the accused and memo. Ext. PW7/B was prepared to this effect. It is thereafter, the search of the rucksack, being carried by the accused, was conducted and the contraband, allegedly Charas, weighing 1.200 Kgs. was recovered therefrom. After sampling and sealing process, the parcel containing the recovered Charas and the sample parcels, were taken into possession vide recovery memo. Ext. PW7/C. NCB Form Ext. PW4/D was filled in on the spot. Thereafter Rukka Ext. PW4/A was prepared and handed over to PW-2 for onward transmission to the Police Station for registration of the case. Consequently, FIR Ext. PW4/B came to be registered against the accused in Police Station, Manali. The I.O. prepared the spot map Ext. PW8/A and on finding that the accused had committed the offence, punishable under Section 20 of the act, he was arrested. The grounds of arrest were disclosed to him vide memo. Ext. PW7/E. 4. On the completion of the investigation, PW8ASI Jai Lal brought the accused and also the case property to Police Station. Rapat Ext. PW1/B to this effect was entered in the Rojnamcha. Parcel containing the case property was produced before PW-4 Om Parkash, the then SHO, who resealed the same with seal “T”. At the instance of PW-4 rapat Ext. PW1/C was also entered in the Rojnamchat to his effect. The I.O. prepared Special Report Ext. PW3/A , which was handed over to the then SDPO, Manali. Entry to this effect was made in the relevant register and extract whereof is Ext.PW3/C. 5. Sample parcel was forwarded to Forensic Science Laboratory for testing. Report Ext.PA was received and on receipt thereof, report under Section 173 Cr. P.C. was filed against the accused in the trial Court. 6. Entry to this effect was made in the relevant register and extract whereof is Ext.PW3/C. 5. Sample parcel was forwarded to Forensic Science Laboratory for testing. Report Ext.PA was received and on receipt thereof, report under Section 173 Cr. P.C. was filed against the accused in the trial Court. 6. Learned trial Judge having gone through the police report and also the documents annexed therewith and finding a prima-facie case having been made out for the commission of offence under Section 20 of the Act against the accused, framed charge against him. The accused, however, pleaded not guilty and claimed trial. Prosecution, in turn, examined 8 witnesses in all to substantiate the charge against the accused. On the other hand, the accused has not opted to produce any evidence in his defence save and except producing Rapat Rojnamcha Ext. D1, D2 and photographs D3 in his defence. 7. On the completion of the record and hearing the parties as well as analyzing the evidence available on record, learned trial Court has held the accused guilty and as such convicted him for the commission of offence, punishable under Section 20 of the Act. He has been sentenced as pointed out at the outset. 8. Shri Anup Chitkara, learned counsel, while taking this Court to the record, has pointed out various contradictions in the evidence produced against the accused and urged that on the basis of such evidence, which is not cogent and reliable, no findings of conviction could have been recorded against the accused. In the alternative, Mr. Chitkara has also emphasized that if the accused is found to have committed the alleged offence, a lenient view in the matter of sentence may be taken, keeping in view his young age. 9. On the other hand, learned Additional Advocate General has come forward with the version that the evidence produced by the prosecution clearly establishes the quilt of the accused and while supporting the judgment under challenge in this appeal, has submitted that the appeal may be dismissed. 10. Having gone through the rival contentions and also the record, the present is a case which is not only heinous, but grievous also, because illicit trafficking of drugs not only affects a particular individual, but society at large and in particular our young generation. 10. Having gone through the rival contentions and also the record, the present is a case which is not only heinous, but grievous also, because illicit trafficking of drugs not only affects a particular individual, but society at large and in particular our young generation. The Act, in fact, is a piece of social legislation enacted with the sole idea to curb illicit trafficking of drugs. 11. The accused, as per the prosecution case, has been found to be in possession of the Chars, weighing 1.200 Kgs. The recovery thereof from his conscious possession has been questioned in view of the contradictions regarding the place where the search and seizure took place, the non-examination of PW-1 qua the manner in which search and seizure had allegedly taken place on the spot, contradictions in the statements of PW-7 and PW-2 with regard to the place where the accused was nabbed and in that of PW-7 and PW-8 with regard to the place where proceedings were conducted and also that whether the proceedings were conducted in day-light or it was darkness. There appear to be contradictory versions in the Rukka and int hat of the statement of PW-2 and also that the Rukka which was sent to Police Station at 6-50 p.m. could have not been received there at 8.15 p.m. because of distance of Police Station from the spot being 23 kms. 12. Learned trial Judge has considered all such points urged before him by learned defence counsel and concluded that the contradictions so pointed out are not of such a nature to discredit the prosecution case. I am in agreement with the findings so recorded because as per the evidence available on record it is not a case where the accused can be said to be implicated falsely for the reason that as per his own admission while answering question No.31 in his statement under Section 313 Cr. P.C. that he was intercepted in Manali Bazar on 12.5.2010 at 9.30 p.m. near Community Health Centre, where he was waiting for a bus to his native place. According to him, PW7 HHC Raj Kumar alongwith one person in civil dress came there and they found one unclaimed bag lying there. ON asking he disowned the said bag. He, however, was taken to police station and some black coloured substance with weights and scale was recovered from that bag. According to him, PW7 HHC Raj Kumar alongwith one person in civil dress came there and they found one unclaimed bag lying there. ON asking he disowned the said bag. He, however, was taken to police station and some black coloured substance with weights and scale was recovered from that bag. According to him, he was falsely implicated in this case on suspicion. 13. The plea so raised by the accused in his defence for the first time in his statement under Section 313 Cr. P.C. cannot be believed to be true being an after thought. Had it been so, he would have cross-examined the prosecution witnesses to this effect. Statements of the witnesses examined by the prosecution reveal that no such suggestion was given on his behalf during their cross-examination. Keeping in view the quantity of the contraband it cannot also be believed that the same has been foisted or planted by the police on him. 14. No doubt the prosecution has failed to associate independent witnesses, however, as per the evidence as has come on record by way of testimony of PW-7 HHC Raj Kumar and the I.O. PW8 ASI Jai Lal, a reasonable explanation that there was no habitation nearby and hence no one available for being associated as a witness, has come on record. Otherwise also, it is well settled at this stage that police officials are as much good as any independent witness, of course, if their testimony inspires confidence. In the case in hand, PW-7 and PW-8 have supported the prosecution case qua the manner in which the accused was intercepted at Chhinni Nallah and also the search and seizure having taken place later on. The proceedings conducted on the spot also stand proved from the evidence as has come on record by way of their respective statements. 15. Whether it was still darkness or day-light and for that matter whether the proceedings had taken place on roadside or in the vehicle, is not so material, particularly when the recovery of the contraband from the rucksack, the accused was carrying on his back, stands established from their testimony. True it is that PW-2 while in the witness box has stated that the accused was intercepted at Fojal Nallah. He might have said so because the police party had proceeded on patrol dut y to the places, entered in Rojnamcha Ext. PW1/A, including Fojal Nallah. True it is that PW-2 while in the witness box has stated that the accused was intercepted at Fojal Nallah. He might have said so because the police party had proceeded on patrol dut y to the places, entered in Rojnamcha Ext. PW1/A, including Fojal Nallah. As per the version of I.O. PW8 Chhinni Nallah also falls in the area of Fojal Nallah. Therefore, the version of PW2 that the accused was intercepted at Fojal Nallah is hardly of any help to the prosecution case, particularly when PW7 and PW8 have stated in one voice that he was intercepted at Chhinni Nallah and the proceedings were also conducted there. 16. Link evidence is also complete in this case for the reason that the I.O. not only sealed the case property himself with seal “H”, but PW-4 SHO Om Parkash also resealed the same with seal “K”. The sample parcel forwarded to Forensic Science Laboratory through PW2 was received duly sealed there as is apparent from the report of FSL Ext. PA. The report further reveals that on analysis the contents of the recovered stuff were found extract of cannabis, hence sample of Charas. No illegality or infirmity can, therefore, be attached to the report also. Special report Ext. PW3/B was duly prepared and received by SDPO, Manali. PW3 HC Dharam Chand, Reader to Dy. S.P. Manali, has proved this aspect of the matter also. 17. The reappraisal of the evidence on record, therefore, leads to the only conclusion that the Court below has not committed any illegality or irregularity while holding the accused guilty under Section 20 of the Act. He has, therefore, been rightly convicted. 18. No doubt the accused is a young boy of 22 years, however, in the matter of sentence also, learned Special Judge has already taken a lenient view. Therefore, on this score also, no interference by this Court is warranted. This appeal, therefore, fails and the same is accordingly dismissed.