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Himachal Pradesh High Court · body

2014 DIGILAW 1538 (HP)

Hem Raj v. State of H. P.

2014-10-30

RAJIV SHARMA, SURESHWAR THAKUR

body2014
JUDGMENT : RAJIV SHARMA, J. 1. This appeal is instituted against the judgment dated 21.5.2011, rendered by the learned Special Judge (II), Kinnaur at Rampur, H.P., in RBT No. 16-AR/3 of 2009/2010, whereby the appellant-accused (hereinafter referred to as the accused) who was charged with and tried for offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, was convicted and sentenced to undergo rigorous imprisonment for ten years and a fine of Rs. One lac and in default of payment of fine, he was further ordered to undergo simple imprisonment for two years. 2. The case of the prosecution, in a nut shell, is that on 16.6.2009 at about 5:30 AM, the police party headed by Dy.S.P. (Probationer) Pankaj Sharma (PW-6), was present at Tuman More on Shawad-Ani Road. They found accused Hem Raj coming from Shawad side carrying a rucksack on his back. He was stopped by the police party on suspicion. The place was secluded. Thus, no independent witnesses were available. The accused opted to be searched by the police. Sh. Pankaj Sharma (PW-6) and other witnesses subjected themselves to be searched by the accused but nothing incriminating was found and memo Ext. PW-1/B was prepared to this effect. PW-6 Pankaj Sharma Dy. S.P. (Probationer) conducted the search of the bag Ext. P-2. It contained charas. It was weighed and found to be 11 kgs 730 gms. The charas alongwith the bag was packed and sealed with seal 'C’. NCB forms in triplicate were filled on the spot. The sample of seal 'C’ was also taken separately on Ext. PW-6/B. The case property was taken into possession vide memo Ext. PW-1/C. 'Rukka’ Ext. PW-2/A was sent through Constable Bhoop Singh to the Police Station. FIR Ext. PW-2/B was registered on the basis of the 'rukka’. The accused was arrested. He was informed about the grounds of arrest vide memo Ext. PW-1/E. The case property alongwith NCB forms were deposited with MHC Anoop Kumar in the malkhana. Entry to this effect Ext. PW-7/A, was made in the malkhana register. The case property alongwith NCB forms were sent for chemical analysis to FSL, Junga through HHC Roshan Lal. Special report was sent to S.D.P.O., Anni. On receipt of the report of the Chemical Examiner Ext. PW-7/B, challan was put up against the accused after completing all the codal formalities. 3. PW-7/A, was made in the malkhana register. The case property alongwith NCB forms were sent for chemical analysis to FSL, Junga through HHC Roshan Lal. Special report was sent to S.D.P.O., Anni. On receipt of the report of the Chemical Examiner Ext. PW-7/B, challan was put up against the accused after completing all the codal formalities. 3. The prosecution has examined as many as 7 witnesses to prove its case. The accused was also examined under Section 313 Cr.P.C to which he pleaded not guilty. His case is of simpliciter denial. The learned Trial Court convicted and sentenced the accused, as stated hereinabove. Hence, the present appeal. 4. Mr. Ravi Tanta, Advocate, appearing vice Mr. Ajay Kochhar, Advocate, for the accused has vehemently argued that the prosecution has failed to prove its case against the accused. On the other hand, Mr. Ramesh Thakur, learned Asstt. Advocate General, has supported the judgment of the learned Special Judge(II), Kinnaur at Rampur, H.P. dated 21.5.2011. 5. We have heard learned counsel for the parties and gone through the records of the case meticulously. 6. PW-1, HC Pushap Dev deposed that on 16.6.2009 he alongwith S.I. Gurbachan Singh, ASI Rajinder Kumar, ASI Ludar Singh, Constable Bhoop Singh, Constable Bali Ram and Constable Chet Ram under the supervision of Dy. S.P. (probationer) Pankaj Sharma, left Police Station Anni, at 3:00 AM in official vehicle No. HP-34-0298, towards Sward side in connection with nakabandi. At about 5:30 AM when they were present at Tuman More on Sward Anni road, one person wearing black pant and check shirt came from Sward side towards Nagan side carrying a bag on his back. On seeing the police party, he stopped and got perplexed. On suspicion of possessing some contraband, Dy. S.P. (Probationer) Pankaj Sharma, asked that person about his name and address. He disclosed his name and address. The accused was informed about his right to be searched in the presence of the Magistrate or the Gazetted Officer, orally as well as in writing, to which the accused opted to be searched by the police. Consent memo Ext. PW-1/A was prepared. The place was isolated and there was no habitation nearby and as such it was not possible to associate any independent witness. He alongwith Dy. S.P. (Probationer) Pankaj Sharma and ASI Rajinder Kumar joined as witnesses. Consent memo Ext. PW-1/A was prepared. The place was isolated and there was no habitation nearby and as such it was not possible to associate any independent witness. He alongwith Dy. S.P. (Probationer) Pankaj Sharma and ASI Rajinder Kumar joined as witnesses. He alongwith both the witnesses gave their personal search to the accused and search memo Ext. PW-1/B to this effect was prepared. The rucksack was searched. It contained charas. It weighed 11 kgs 730 gms. The charas was put back into the same polythene envelopes which were put in the same rucksack. The same was packed and wrapped with a piece of cloth and sealed with six seals bearing impression 'C’. NCB forms in triplicate were filled up and after drawing specimen of seal, the seal after its use was handed over to him. The charas recovered from the accused was taken into possession vide seizure memo Ext. PW-1/C. 'Rukka’ was scribed by Dy. S.P. (Probationer) Pankaj Sharma. He sent the same to P.S. Anni, through Constable Bhoop Singh. He denied the suggestion in his crossexamination that on 16.6.2009 at 5:30 AM, bus No. HP-34-8389 in which Malik Kumar was driver and Manohar Lal was conductor, started from bus stand Anni to Kullu. He denied the suggestion that the bus was stopped by them below Haripur College. He denied the suggestion that Hem Raj accused had boarded the bus at Nagan and he was to go to Kingal. He also denied the suggestion that the accused was issued a ticket from Nagan to Kingal for of Rs. 20/-. He also denied the suggestion that Constable Bhoop Singh boarded the bus and called accused Hem Raj by name and thereafter he made him to get down from the bus and then he was taken to P.S. Anni. He also denied the suggestion that when the accused was taken down, at that time he was not holding any bag. He also denied the suggestion that the accused was falsely implicated. Tuman More is situated at a distance of 2 to 2 ½ kms. from Nagan. He denied the suggestion that Tuman More is situated at a distance of 1200 meters from Nagan. He also denied the suggestion that 200-300 meters before Tuman More, there is a bridge on the 'khud’. According to him, besides the fish farm, there is a shop of Madan. It was opened late in the morning. from Nagan. He denied the suggestion that Tuman More is situated at a distance of 1200 meters from Nagan. He also denied the suggestion that 200-300 meters before Tuman More, there is a bridge on the 'khud’. According to him, besides the fish farm, there is a shop of Madan. It was opened late in the morning. He also denied the suggestion that 30 meters above the bridge there are 4 houses of the Brahmins. He denied the suggestion that one person was on duty round the clock at the fish farm. They remained on the spot upto around 11:45 AM. He also denied the suggestion that after every half an hour, one bus and 4-5 other vehicles cross through Tuman More. He also denied the suggestion that no independent witnesses from Village Nagan or from near the bridge was associated, because the entire proceedings were conducted by them in the Police Station. He also denied the suggestion that consent memo Ext. PW-1/A was falsely prepared. 7. PW-2 Constable Bhoop Singh, also deposed the manner in which the accused was apprehended, searched and the sealing process was completed on the spot. According to him, ASI Rajinder Kumar and HC Pushap Dev were joined in investigation by the I.O. as witnesses as no independent witnesses were available and the place where the accused person was intercepted was an isolated place. At that time, no person was passing from that place. The charas weighed 11 Kgs. 750 gms. The charas was packed and sealed with seal impression 'T’. NCB forms in triplicate were filled in and specimen of seal was obtained. Thereafter, seal was handed over to HC Pushap Dev. 'Rukka’ Ext. PW-2/A was prepared and handed over to MHC Anup Kumar in the Police Station on the basis of which FIR Ext. PW-2/B was registered. He admitted in his cross-examination that Anni Kullu bus service via Shimla starts from Anni at 5:30 AM. He denied the suggestion that on 16.6.2009 bus No. HP-34-8389 in which Malik Kumar was driver and Manohar Lal was conductor was going from Anni to Kullu via Shimla. He denied the suggestion that the accused Hem Raj boarded the bus for going to Kingal at Nagan. He denied the suggestion that the bus was intercepted below Haripur College. He denied the suggestion that he called accused Hem Raj by name and brought him down from the bus. He denied the suggestion that the accused Hem Raj boarded the bus for going to Kingal at Nagan. He denied the suggestion that the bus was intercepted below Haripur College. He denied the suggestion that he called accused Hem Raj by name and brought him down from the bus. He denied the suggestion that the accused was brought to the Police Station, Anni. According to him, the distance from Nagan to Tunam More would be around 2 or 2 ½ kms. He denied the suggestion that there were four houses of Brahmins situated at a distance of 30-40 meters above the bridge. He also deposed that no attempt was made to join any independent witness from the nearby places. They did not come upto the bridge to find out that some person was present in the shop or in the fish farm. 8. Statements of PW-3 HHC Kashmi Ram and PW-4 ASI Sohan Lal, are formal in nature. 9. PW-5 HHC Roshan Lal deposed that on 17.6.2009 MHC Anoop Kumar handed over one sealed parcel weighing 11.370 kgs. Sealed with seal bearing impression 'E’ alongwith NCB forms and specimen of seal vide RC No. 28/09 dated 17.6.2009 for being deposited in FSL, Junga. He deposited the same at FSL, Junga. Till the property remained in his custody, it was not tampered with. 10. PW-6 Pankaj Sharma, deposed that he alongwith other police officials left Police Station Anni in official vehicle No. HP-34-0292 alongwith I.O. Kit and floodlight in connection with general patrol duty and Nakabandi towards Nagan. At about 5.30 pm, when they were present at Tumon More on Shwar- Anni Road, one person came from Shwar side towards Nagan holding a rucksack on his back. That person was stopped by them. The accused got perplexed. He disclosed his name to the police. He was apprised of his right to be searched in presence of a Magistrate or any Gazetted Officer. The accused opted to be searched by the police vide consent memo Ext. PW-1/A. The place was isolated and no independent witness was available. There was also no habitation nearby. He joined ASI Rajender Kumar and HC Pushap Dev as witnesses. All of them gave their search to the accused person vide search memo Ext. PW-2/B. The Charas was found in the bag. It weighed 11.370 kgs. PW-1/A. The place was isolated and no independent witness was available. There was also no habitation nearby. He joined ASI Rajender Kumar and HC Pushap Dev as witnesses. All of them gave their search to the accused person vide search memo Ext. PW-2/B. The Charas was found in the bag. It weighed 11.370 kgs. The charas was put back in the same bag, which was packed and sealed with seal bearing impression 'C’. NCB forms in triplicate, were filled in by him and thereafter, specimen of seal Ext. PW-6/B was drawn and seal was handed over to HC Pushap Dev. The Charas was taken into possession vide seizure memo Ext. PW-1/C. The personal search of the accused person was conducted. The site plan was also prepared. The accused was arrested vide arrest memo PW- 1/E. He deposited the case property alongwith NCB forms and specimen of seal with MHC Anup Kumar in the Malkhana of the Police Station. The House of Mohar Singh was also raided in the presence of his wife Jiwni Devi. But, nothing incriminating was recovered from his house. Search Memo Ext. PW- 6/G was prepared. He denied the suggestion in his cross-examination that the accused boarded the bus at Nagan and he was to go to Kingal on 16.6.2009. He also denied the suggestion that accused Hem Raj had purchased Bus ticket for Rs. 20/- bearing No. 008433. He also denied the suggestion that Constable Bhoop Singh stopped the aforesaid bus at Haripur and called accused Hem Raj out of the bus. He also denied the suggestion that the police personnel after making the accused person to get down from the bus, brought him to Police Station Anni. No attempt was made to join independent witnesses as none was available on the spot or nearby. He denied the suggestion that the documents were prepared in advance. 11. PW-7 HC Anoop Kumar, deposed that on 16.6.2009, Constable Bhoop Singh brought Rukka Ext. PW-2/A. He sent the case file to Shri Pankaj Sharma, Dy. S.P. (Probationer). Shri Pankaj Sharma, has deposited the case property comprising of one sealed parcel which was sealed with seal impression 'C’ alongwith specimen of seal and NCB forms in triplicate in Malkhana. He made entry in the Malkhana register at Sr. No. 205, the extract of which is Ext. S.P. (Probationer). Shri Pankaj Sharma, has deposited the case property comprising of one sealed parcel which was sealed with seal impression 'C’ alongwith specimen of seal and NCB forms in triplicate in Malkhana. He made entry in the Malkhana register at Sr. No. 205, the extract of which is Ext. PW-7/A. He sent the parcel alongwith NCB forms and specimen of seal to FSL Junga through HHC Roshan Lal vide RC No. 28/2009 on 17.6.2009. The copy of RC and receipt is Ext. PW-7/B. The case property remained intact in his custody and it was not tampered with. The report of Chemical Examiner is Ext. PW-7/C. 12. DW-1 Constable Mohar Singh, has proved entry at page No. 241 of the log book of vehicle HP-34-0298 vide memo Ext. DW-1/A. 13. The accused has appeared as DW-2. According to him, he boarded the HRTC Bus No. HP-34-8389 at Nagan at 8.45 AM. When the bus reached below College at Haripur, two police officials present on the road stopped the bus. One of the police official was Head Constable and other was Constable. The police Constable entered the bus and called his name and asked him to get down from the bus. He got down from the bus. The police officials had conversation with the driver of the bus. When he boarded the bus, he was not having any luggage with him. On asking by the police at that time also, he was not possessing any luggage. There were large number of passengers, mainly girls present in the bus. The police vehicle came from Nula side and then the police official took him to Police Station Anni. The Police officials showed him the bag and thereafter they obtained his signatures on several documents. The bag did not belong to him. On the next day, he was brought to Rampur and his brother met him there. He has narrated the entire story to his brother. He has been falsely implicated by the police in this case. He had purchased bus ticket from Kingal vide Ext. DW-2/A. In his cross-examination, he deposed that the bus was full and he was standing in the bus. At the time of his arrest, his personal search was conducted and search memo Ext. PW-1/D was prepared. It was signed by him. He also admitted that the articles recovered from the personal search were entered in the search memo. DW-2/A. In his cross-examination, he deposed that the bus was full and he was standing in the bus. At the time of his arrest, his personal search was conducted and search memo Ext. PW-1/D was prepared. It was signed by him. He also admitted that the articles recovered from the personal search were entered in the search memo. He denied the suggestion that since he was not possessing any ticket and as such the same was not mentioned in the search memo Ext. PW-1/D. He deposed that the police had returned the ticket to him after perusing the same. 14. DW-3 Malik Kumar, is the driver of bus No. HP-34-8389. According to him, the accused person signaled the bus to stop at Nagan. He told him that the bus was full but the accused persons stated that he wanted to board. He boarded the bus. He was not possessing any baggage at that time. Near Haripur, one of the police officials was of the rank of Head Constable and he did not notice the rank of the other police official. He was not having any star on his uniform. He called the name of accused Hem Raj and made him to get down from the bus. At that time, the accused person did not possess any baggage. In his cross examination, he denied the suggestion that on 16.6.2009, the accused had not boarded the bus at Nagan. 15. DW-4 Manohar Lal is the conductor of the bus. He deposed that Ext. DW-2/A, ticket was from Nagan to Kingal. The date of issue of this ticket was 16th of the month. The police officials stopped the bus at Haripur. The accused was present in the bus. The police officials got the accused to alight from the bus. The accused person was not carrying any baggage when he got down from the bus. The police officials asked them to leave the place and they left towards Luhri side. In his cross-examination he deposed that the bus was 37 seater. At that time about 65 passengers were present in the bus out of which 20-22 passengers were standing. When the accused person boarded the bus at that time, he had no conversation with the driver or with him. 16. Mr. In his cross-examination he deposed that the bus was 37 seater. At that time about 65 passengers were present in the bus out of which 20-22 passengers were standing. When the accused person boarded the bus at that time, he had no conversation with the driver or with him. 16. Mr. Ravi Tanta, Advocate has vehemently argued that the prosecution has not examined any independent witness during the entire process of seizure and arrest of the accused. PW-1 H.C. Pushap Dev has specifically deposed that the place where the accused was apprehended was isolated and there was no habitation nearby as such it was not possible to associate any independent witness. ASI Rajender Kumar joined them as witness. PW-2 Constable Bhoop Singh also deposed that ASI Rajender Kumar and HC Pushap Dev were joined by the IO as witnesses as no independent witnesses were available as the place where the accused was intercepted was isolated. 17. PW-6 Pankaj Sharma, Dy. S.P. (Probationer) also deposed that the place was isolated. Therefore, no independent witnesses were available and there was no habitation nearby. He joined ASI Rajender Kumar and HC Pushap Dev as witnesses. The statement of PW-1 HC Pushap Dev, PW-2 Constable Bhoop Singh and PW-6 Pankaj Sharma are truthful and natural. The statements of officials witnesses can be relied upon if inspire confidence. The learned trial Court has rightly relied upon the statements of PW-1 HC Pushap Dev, PW-2 Constable Bhoop Singh and PW-6 Pankaj Sharma, Dy. S.P.( Probationer) to the effect that no independent witness was available at the spot. It was 5.30 AM in the morning. The habitation was at a far off place. The shop of one Madan was not opened in the morning as per the statements of PW- 1 H.C. Pushap Dev and PW-2 Constable Bhoop Singh. PW-1 HC Pushap Dev has also deposed that efforts were made to join independent witnesses. 18. Mr. Ravi Tanta, Advocate has also argued that there is variance with regard to seal impression. PW-1 HC Pushap Dev has deposed that the contraband was put back in the same polythene bag which was put in the same rucksack, which was packed and wrapped with a piece of cloth and sealed with 6 seals bearing impression 'C’. 18. Mr. Ravi Tanta, Advocate has also argued that there is variance with regard to seal impression. PW-1 HC Pushap Dev has deposed that the contraband was put back in the same polythene bag which was put in the same rucksack, which was packed and wrapped with a piece of cloth and sealed with 6 seals bearing impression 'C’. PW-2 Constable Bhoop Singh has deposed that the Charas was put back into the same bag which was packed and sealed with seal bearing impression 'T’. PW-5 HHC Roshan Lal has deposed that on 17.6.2009, MHC Anoop Kumar handed over one sealed parcel weighing 11.730 kgs sealed with seal bearing impression ’E’ alongwith the NCB forms. PW-6 Shri Pankaj Sharma, Dy.S.P. (Probationer) has categorically deposed that charas was taken into possession vide seizure memo Ext. PW-1/C. The charas was put back into the same bag which was packed and sealed with seal bearing impression 'C’. Even, PW-7 HC Anoop Kumar has deposed that Sh. Pankaj Sharma Dy. S.P. (Probationer), has deposited the case property comprising of one sealed parcel which was sealed with seal impression 'C’ alongwith specimen of seal and NCB forms in triplicate in Malkhana. 19. We have gone through NCB forms, the sample seal is with alphabet 'C’. in Ext. PW-7/C, the FSL has received one sealed cloth parcel bearing 6 seals of impression 'C’. Thus, the statement of PW-2 Bhoop Singh to the effect that seal impression was 'T’ and PW-5 Shri Pankaj Sharma, Dy. S.P. (Probationer), contraband was bearing seal impression 'E’ is of no consequence. 20. Mr. Ravi Tanta, Advocate has also argued that the accused has been falsely implicated. According to him, his client had infact boarded the HRTC Bus No. HP-34-8389 at Nagan and had purchased ticket to travel to Kingal. He has referred to statement of accused DW-2, accused Hem Raj, DW-3 Malik Kumar and DW-4 Manohar Lal. According to DW-2, he was travelling in the Bus and was asked to get down from the bus by the police officials. He has proved Ext. DW-2/A, ticket. DW-3 Malik Kumar was driver of the bus bearing registration No. HP-34-8389. According to him, the accused signaled him to stop the bus on 16.6.2009. He stopped the bus at Nagan. He told him that the bus was full but the accused person stated that he wanted to go. He has proved Ext. DW-2/A, ticket. DW-3 Malik Kumar was driver of the bus bearing registration No. HP-34-8389. According to him, the accused signaled him to stop the bus on 16.6.2009. He stopped the bus at Nagan. He told him that the bus was full but the accused person stated that he wanted to go. DW-4 Manohar Lal, in his cross-examination has admitted that when the accused person boarded the bus, he had no conversation either with the driver or with him. The version of DW-2 accused Hem Raj, DW-3 Malik Kumar and DW-4 Manohar Lal does not inspire any confidence. PW-1 HC Pushap Dev denied the suggestion that the bus was stopped by them below Haripur college. He also denied the suggestion that the accused had boarded the bus and he was going to Kingal. He has also denied the suggestion that the accused was brought to the police station and falsely implicated in the case. He also denied the suggestion that the accused was issued ticket from Nagan to Kingal for a fare of Rs.20/-. He also denied the suggestion that the Constable Bhoop Singh boarded the bus and called Hem Raj accused by name and thereafter he made him to get down from the bus and then he was taken to police station Anni. PW-2 Constable Bhoop Singh has also denied the suggestion that accused has boarded the bus for travelling to Kingal at Nagan. He also denied the suggestion that they stopped the said bus below Haripur college. He has also denied that he called the accused by name and brought him down from the bus. PW-1 HC Pushap Dev and PW-2 Constable Bhoop Singh have denied that 30 meters above the bridge, there were four houses of the Brahmins. PW-6 has also denied the suggestion that the accused had purchased bus ticket for Rs.20/- bearing No. 008433. He also denied the suggestion that the bus was stopped by PW-2 Constable Bhoop Singh. He also denied the suggestion that accused was made to got down from the bus. The search of the accused was carried out. There is no entry of ticket in the recovery memo as per Ext. PW-1/B. The charas has been recovered from the exclusive and conscious possession of the accused. The prosecution has followed the prescribed procedure. There is no violation of any mandatory provisions of the Act. The search of the accused was carried out. There is no entry of ticket in the recovery memo as per Ext. PW-1/B. The charas has been recovered from the exclusive and conscious possession of the accused. The prosecution has followed the prescribed procedure. There is no violation of any mandatory provisions of the Act. The prosecution has proved the case beyond reasonable doubt. 21. Accordingly, there is no occasion for us to interfere with the well reasoned judgment of the trial Court dated 21.5.2011. The appeal is dismissed.