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2014 DIGILAW 1435 (HP)

Fangi Ram @ Fanki Ram v. State of H. P.

2014-10-16

P.S.Rana, Sanjay Karol

body2014
JUDGMENT Sanjay Karol, J. Appellant-convict Fangi Ram alias Fanki Ram, hereinafter referred to as the appellant, has assailed the judgment dated 30.4.2011, passed by Special Judge (II), Kinnaur at Rampur Bushahr, Himachal Pradesh, in Sessions Trial No.18 AR-3 of 2009/10, titled as State of Himachal Pradesh v. Fangi Ram and another, whereby he stands convicted of the offence punishable under the provisions of Section 20(ii)(C) of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act) and sentenced to undergo rigorous imprisonment for a Whether reporters of the local papers may be allowed to see the judgment? period of ten years and pay fine of `1,00,000/- and in default thereof to further undergo simple imprisonment for a period of two years. 2. It is the case of prosecution that on 19.9.2009, SHO, Police Station, Nirmand, Shri Vidya Chand (PW-8) alongwith police party, comprising of Jhabe Ram (PW-1), ASI Kanwar Singh (PW-7), Mohinder Singh, Bir Singh and Chet Ram, left Police Station, in connection with investigation of case FIR No.74/09, as also Nakabandi on the Nirmand- Bagipul road. Daily Diary entry (Ex.PW-8/A) was made with regard thereto. Near Biwani Nallah, police party set up a Naka. At about 5.30 p.m., police party saw vehicle bearing No.HP-01S-0348 coming from Nirmand side. The same was stopped for checking. Bhupinder Kumar (co-accused) was on the wheels and appellant Fangi Ram, who was sitting on the back seat, was holding a bag on his lap, which was checked by the police party. Inside the bag, Charas like substance, in the shape of balls, sticks and mats, was found. The same was seized and upon weighment found to be 3 kgs 500 grams. The same was sealed with seal impression ‘A’. NCB form (Ex. PW-8/B) was filled up on the spot. Jhabe Ram took Ruka (Ex. PW-1/C) to the Police Station, where FIR No.75, dated 19.9.2009 (Ex. PW-1/D), under the provisions of Section 20 of the NDPS Act was registered. Appellant and his co-accused Bhupender Kumar arrested and with the completion of investigation on the spot, police party returned to the Police Station, where Vidya Chand deposited the contraband substance alongwith NCB form with MHC Lal Chand (PW-6). Special Report (Ex. PW-3/B) taken by Mohar Dass (PW-5) was handed over to Jia Lal (PW-3) in the Office of SDPO. Appellant and his co-accused Bhupender Kumar arrested and with the completion of investigation on the spot, police party returned to the Police Station, where Vidya Chand deposited the contraband substance alongwith NCB form with MHC Lal Chand (PW-6). Special Report (Ex. PW-3/B) taken by Mohar Dass (PW-5) was handed over to Jia Lal (PW-3) in the Office of SDPO. Sham Lal (PW-2) took the entire contraband substance for analysis to FSL, Junga and report (Ex. PA) obtained and taken on record by the police. With the completion of investigation, which prima facie revealed complicity of the appellant and his co-accused in the alleged crime, challan was presented in the Court for trial. 3. Appellant Fangi Ram and his co-accused Bhupender Kumar were charged for having committed an offence punishable under the provisions of Section 20(b)(ii)(C) of the NDPS Act, to which they did not plead guilty and claimed trial. 4. In order to establish its case, prosecution examined as many as eight witnesses and statements of the appellant and his co-accused, under the provisions of Section 313 of the Code of Criminal Procedure were also recorded, in which they took plea of innocence and false implication. Appellant Fangi Ram also examined one witness in defence. 5. Based on the testimonies of witnesses and the material on record, trial Court convicted appellant Fangi Ram of an offence punishable under the provisions of Section 20(ii)(C) of the NDPS Act and sentenced him as aforesaid. Hence, the present appeal by the accused. 6. However, co-accused Bhupender Kumar was acquitted by the trial Court and no appeal stands filed by the State against such acquittal. 7. Having heard learned counsel for the parties as also perused the record, we are of the considered view that no case for interference is made out. In the instant case, testimonies of prosecution witnesses fully inspire confidence. There are neither any contradictions nor any exaggerations, improbabilities, variations, discrepancies, rendering the prosecution case to be doubtful in any manner. 8. The defence emerging from the line of crossexamination of the prosecution witnesses and examination of Kumat Ram (DW-1) appears that police found an unclaimed bag containing charas and appellant stands falsely implicated in the crime. 9. Having perused the testimonies of the witnesses, we find the defence not to have been probablized at all. We do not find the version of Kumat Ram to be inspiring in confidence. 9. Having perused the testimonies of the witnesses, we find the defence not to have been probablized at all. We do not find the version of Kumat Ram to be inspiring in confidence. He does not state the reason of his travel at the time police recovered an unclaimed bag. In any event Kumat Ram does not state that the unclaimed bag was taken by the police and forcibly kept on the lap of the accused, who was sitting inside the vehicle. Significantly, from the crossexamination, presence of the accused inside the vehicle on the spot is not disputed. Also presence of the police party on the spot is not in dispute. 10. Nonetheless, prosecution case has to be examined on its own merit. Having minutely examined the testimonies of relevant prosecution witnesses, we are of the considered view that guilt of the appellant in relation to the charged offence stands proved, beyond reasonable doubt. 11. Vidya Chand categorically states that on 19.9.2009 he left the Police Station alongwith the police party, in connection with investigation of a case (FIR No.74/09) as also setting up a Naka. He made entry in the record. He set up a Naka at Biwani Nallah. Appellant, who was sitting at the rear seat and was holding a bag on his lap, came in a vehicle (Maruti Van No.HP-01S-0348). The vehicle was stopped and checked. This was at about 5.30 p.m. The bag was opened and Charas in the shape of balls, sticks and mats found, which was seized. Upon weighment, it was found to be 3.5 kgs. He further states that the entire bulk parcel was sealed with seal impression ‘A’. NCB form (Ex. PW-8/B) was filled up on the spot. He sent Jhabe Ram to the Police Station alongwith Ruka (Ex. PW-1/C), for registration of the FIR. Seizure operations were carried out by associating Kanwar Singh (PW-7). He categorically states that the place where the vehicle was checked was isolated and no independent witnesses were available. In the crossexamination, we do not find this version of his to have been shattered in any manner. In fact, his testimony stands materially corroborated by Kanwar Singh on all counts. Seizure operations were carried out by associating Kanwar Singh (PW-7). He categorically states that the place where the vehicle was checked was isolated and no independent witnesses were available. In the crossexamination, we do not find this version of his to have been shattered in any manner. In fact, his testimony stands materially corroborated by Kanwar Singh on all counts. Similarly, Jhabe Ram not only corroborates such version but also states that he carried the ruka to the Police Station, on the basis of which Jagat Singh recorded the FIR and handed over the file to him, which he carried back and handed over to Vidya Chand. We find testimonies of these police officials to be absolutely inspiring in confidence. 12. Assailing the judgment, Mr. P.P. Chauhan, learned counsel for the appellant, has made the following submissions: (i) no effort was made by the police party to associate any independent witnesses; (ii) seal was not handed over to any independent witness; (iii) there is no evidence to prove that the contraband substance was kept in safe and secure custody; and (iv) there is inordinate delay in sending the sample for analysis. 13. All the police officials, as already discussed, have deposed, which version we find to be inspiring in confidence, that the place where the vehicle was searched, no independent witnesses were available. Noticeably, the vehicle was checked in a jungle at an isolated place. It is a case of chance recovery and not prior intimation. As such, Vidya Chand associated police official Kanwar Singh (PW-7), present on the spot, for carrying out the seizure operations. There is nothing wrong or illegal about the same. Kanwar Singh further clarifies that seal was handed over to him by Vidya Chand. Also Superior Officers were immediately informed of the incident. 14. Vidya Chand, who was the SHO of the concerned Police Station, deposited the contraband substance with Lal Chand (PW-6), who in turn handed over the same to Sham Lal (PW-2), who deposited the same at FSL, Junga. All these witnesses have categorically deposed that so long as the contraband substance remained in their custody, the same was kept in safe custody and not tampered with. 15. Contraband substance was seized on 19.9.2009 and deposited by Vidya Chand with the MHC the very same day. All these witnesses have categorically deposed that so long as the contraband substance remained in their custody, the same was kept in safe custody and not tampered with. 15. Contraband substance was seized on 19.9.2009 and deposited by Vidya Chand with the MHC the very same day. Vidya Chand has further explained that 20.9.2009 was Sunday and on account of shortage of staff, the contraband substance could not be sent to the laboratory and as such remained with him till 22.9.2009, on which date he handed it over to Sham Lal, who further corroborates that upon receipt thereof, he deposited it at the FSL, Junga the following day, i.e. 23.9.2009, which fact is also evident from report (Ex. PA) of the Forensic Science Laboratory. As such, we do not find that there is any inordinate delay in sending the sample to the laboratory for examination. 16. As such, limited contentions raised by the learned counsel cannot be said to be legally sustainable or borne out from the record. 17. Thus, in our considered view, prosecution has been able to establish that the appellant was found to be in conscious and exclusive possession of 3.5 kgs of Charas, beyond reasonable doubt, by leading clear, cogent, convincing and reliable piece of evidence. We clarify that acquittal of the co-accused has no bearing on the outcome of the present appeal, for it has come on record that the vehicle was a taxi. The Driver could not have been aware of the contents of the bag. 18. For all the aforesaid reasons, we find no reason to interfere with the well reasoned judgment passed by the trial Court. The Court has fully appreciated the evidence placed on record by the parties. There is no illegality, irregularity, perversity in correct and/or in complete appreciation of the material so placed on record by the parties. Hence, the appeal is dismissed. Appeal stands disposed of, so also pending application(s), if any.