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2014 DIGILAW 1574 (HP)

Prakash Chand v. State of Himachal Pradesh

2014-11-04

RAJIV SHARMA, SURESHWAR THAKUR

body2014
JUDGMENT : Rajiv Sharma, J. This appeal is instituted against the judgment dated 26.3.2011, rendered by the learned Special Judge(II), Kinnaur at Rampur, H.P. in RBT No. 20-AR/3 of 2010, whereby the appellant-accused (hereinafter referred to as the accused) who was charged with and tried for offence under Section 20/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985, was convicted and sentenced to undergo rigorous imprisonment for 10 years and to pay fine of Rs. 1,00,000/- and in default of payment of fine to undergo simple imprisonment for two years. Tara Chand was acquitted, hence this appeal. 2. The case of the prosecution, in a nut shell, is that on 13.12.2008, S.I Gurbachan Singh, P.S.Anni alongwith ASI Ludar Singh, Constable Hari Singh and Constable Bhoop Singh left Police Station Anni in connection with investigation of case FIR No. 119/08 dated 12.12.2008 and also for detection of cases under Excise Act, NDPS Act and Forest Act and for checking of traffic towards Swad, Kanda Aran side. At about 2 pm accused Prakash Chand came from Swad side holding a bag on his back. He stopped at a distance of 25 meters. He turned back and tried to escape. He was apprehended. S.I. Gurbachan Singh informed the accused that he intended to conduct his search and also apprised him of his right of being searched in the presence of the Magistrate or a gazetted officer. The accused opted to be searched by the police on the spot. S.I. Gurbachan Singh alongwith ASI Ludar Singh and Constable Bhoop singh were joined by him as witnesses. They gave their personal search to the accused. The bag was checked. It contained 6 kgs 250 gms charas. The sampling and seizure procedure was completed and NCB forms in triplicate were filled in. The 'rukka’ was sent to PS Anni through Constable Hari Singh on the basis of which FIR No. 121/2008 was registered. The accused was arrested the case property was deposited in the malkhana. The case was investigated and challan was put up after completing all the codal formalities. 3. The prosecution has examined as many as 13 witnesses to prove its case. The accused persons were also examined under Section 313 Cr.P.C to which they pleaded not guilty. Accused also examined two witnesses in defence. The learned Trial Court convicted accused Prakash Chand, as stated hereinabove. 4. Mr. 3. The prosecution has examined as many as 13 witnesses to prove its case. The accused persons were also examined under Section 313 Cr.P.C to which they pleaded not guilty. Accused also examined two witnesses in defence. The learned Trial Court convicted accused Prakash Chand, as stated hereinabove. 4. Mr. Manoj Pathak, Advocate, for the accused has vehemently argued that the prosecution has failed to prove its case against the accused. According to him, no independent witness was associated by the prosecution, though available. On the other hand, Mr. M.A.Khan, learned Addl. Advocate General, has supported the judgment dated 26.3.2011, of the learned trial Court. 5. We have heard learned counsel for the parties and gone through the records of the case meticulously. 6. PW-1, ASI Luder Singh, deposed that on 13.12.2008, he accompanied S.I. Gurbachan Singh along with Constable Hari Singh and Bhoop Singh to Nagan. One person was apprehended who was carrying one Pithu and coming from Swad side towards Nagan. The accused was given option to be searched either before Magistrate or gazetted officer. Accused opted to be searched by the police vide memorandum Ext. PW- 1/A. Constable Hari Singh was deputed to procure some independent witnesses but Constable Hari Singh came after some time as no independent witness was found to be associated. S.I. Gurbachan Singh after associating the official witnesses offered his search to accused Prakash Chand vide memorandum Ext. PW-1/B. The search of Pithu was carried out. It contained 6 kg 250 gms charas. Out of this contraband, two samples of 25 gms each were drawn separately and the remaining charas was put into the same polythene packet and pithu bag which was put into a separate sealed packet as P1 duly sealed with seal 'C’ in the separate packet. NCB forms were filled in. The sample charas and remaining charas was taken into possession vide seizure memo Ext. PW-1/C. Constable Bhoop Singh and accused Prakash Chand also signed the same. In his cross-examination, he deposed that the distance from Police Station to Kanda Aran is about 20 kms., approximately. They remained there for about 2 hours. He did not remember the house or shop owner adjoining to the Nagan bridge. The electronic scale was used to weigh the contraband. All the proceedings including preparation of papers were completed on the spot. 7. PW-2 Chunni Devi is the wife of the accused. They remained there for about 2 hours. He did not remember the house or shop owner adjoining to the Nagan bridge. The electronic scale was used to weigh the contraband. All the proceedings including preparation of papers were completed on the spot. 7. PW-2 Chunni Devi is the wife of the accused. She did not know what had happened to her husband. She was declared hostile and cross-examined by the learned Public Prosecutor. In her crossexamination, she deposed that her husband returned at about 4:30 PM after converting the timber. She denied the suggestion that her husband returned and he received a telephonic call from co-accused Tara Chand. 8. PW-3 Rajinder Kumar and PW-4 Amar Chand have deposed that nothing has taken place in their presence. They were also declared hostile. However, they have admitted their signatures on the memorandum Mark 'X’. 9. PW-5 M.L.Sharma, deposed that he has supplied the call details of Mobile No. 98171 49093 vide Ext. PW-5/A. 10. PW-6 Devinder Verma, has supplied the call details of Mobile No. 91166 43520 vide Ext. PW-6/A. 11. PW-7 HC Anup Kumar deposed that on 13.12.2008, Constable Hari Singh brought the 'rukka’ on the basis of which, he registered FIR Ext. PW-7/A. Thereafter, the file was handed over to Constable Hari Singh. On 13.12.2008, S.I. Gurbachan Singh deposited case property 3 sealed parcel, NCB forms in triplicate alongwith specimen impression of seal in the malkhana and entry was incorporated in the register vide PW-7/E. On 14.12.2008, vide RC No. 92/2008 he handed over to HHC Roshan Lal one sealed parcel sample alongwith the specimen impression of seal and NCB forms to be delivered at State Forensic Science Laboratory who brought the receipt over the RC itself after depositing the same. The copy of RC was Ext. PW-7/F. 12. PW-8 ASI Sohan Lal has deposed that on 14.12.2008, Dy. SP. Bhajan Singh Negi handed over to him special report, the copy of which was Ext. PW-8/A. 13. PW-9 HC Pushp Dev deposed that on 6.3.2010, he was working as MHC, Police Station Anni. He handed over two sealed parcels containing charas and sample of charas duly sealed alongwith the NCB form and specimen impression of seal vide RC No. 124/09-10 to HHC Roshan Lal to be delivered at SFSL who brought the receipt over the RC itself, the copy of which is Ext. PW-9/A. 14. He handed over two sealed parcels containing charas and sample of charas duly sealed alongwith the NCB form and specimen impression of seal vide RC No. 124/09-10 to HHC Roshan Lal to be delivered at SFSL who brought the receipt over the RC itself, the copy of which is Ext. PW-9/A. 14. PW-10 HHC Roshan Lal, deposed that firstly on 14.12.2008, MHC Anup Ram handed over to him one sealed parcel duly sealed with seal 'C’ alongwith specimen impression of seal and NCB form vide RC No. 92/2008 and after depositing the same he brought the receipt over the RC itself and handed over the same to MHC. The copy of RC is Ext. PW-7/F. Thereafter on 6.3.2010 MHC Pushp Dev handed over to him two sealed parcels duly sealed alongwith the specimen impression of seal and NCB form vide RC No. 124/00, the copy of which is Ext. PW- 9/A to be deposited in SFSL and after depositing the same, he brought the receipt over the RC itself and handed over to the MHC. No interference was caused to the samples. 15. PW-11 Hem Bharti is a formal witness. 16. PW-12 Constable Hari Singh deposed the manner in which the accused was apprehended and seizure and sampling process was completed on the spot. S.I. Gurbachan Singh scribed 'rukka’ Ext. PW- 12/A and handed over to him. He delivered the same to MHC Anup Kumar in the Police Station Anni, on the basis of which FIR Ext. PW-7/A was registered. In his cross-examination, he has specifically deposed that the I.O. had sent him to procure independent witnesses but no independent witness was available. He had gone towards Swad side as well as towards Nagan chowk to look for independent witnesses. He had gone towards Nagan side first and thereafter he had gone towards Swad side. He denied the suggestion that at that time a large number of people were present at the Nagan chowk. He denied that there was a tea stall at Nagan chowk and residential houses were also situated besides the shop. He made search for the independent witnesses for about 20/25 minutes on both sides. 17. PW-13 S.I. Gurbachan Singh also deposed the manner in which the accused was apprehended and the search and seizure process was completed and 'rukka’ was handed over to PW-12 Hari Singh, to be deposited at the Police Station, Anni. He made search for the independent witnesses for about 20/25 minutes on both sides. 17. PW-13 S.I. Gurbachan Singh also deposed the manner in which the accused was apprehended and the search and seizure process was completed and 'rukka’ was handed over to PW-12 Hari Singh, to be deposited at the Police Station, Anni. He deposited the case property with MHC with specimen seal and NCB forms. In his cross-examination, he deposed that they had visited Kanda in connection with investigation of a case FIR No. 119/08. He made an attempt to join independent witnesses by sending Constable Hari Singh to look for independent witnesses but he could not find any independent witness. 18. It has come in the statement of PW-1 ASI Ludar Singh that Constable Hari Singh (PW-12) was deputed to bring independent witnesses by S.I. Gurbachan Singh. PW-12 Constable Hari Singh came back as no independent witness was found. PW-12 Constable Hari Singh has deposed in his cross examination that I.O. had sent him to procure independent witnesses; however, no independent witness was available. He had gone towards Swad side as well as towards Nagan chowk side to look for independent witnesses. He had gone towards Nagan side first and thereafter he had gone towards Swad side. He made search for the independent witnesses for about 20/25 minutes on both sides. PW-13 SI Gurbachan Singh has also deposed that he had deputed Constable PW-12 Hari Singh to find out independent witnesses, however, no independent witness was available on the spot. PW-13 SI Gurbachan Singh has tried to associate independent witnesses by sending PW-12 Constable Hari Singh but no independent witness was available. The statement of official witnesses PW-1 ASI Ludar Singh, PW-12 Constable Hari Singh and PW-13 SI Gurbachan Singh inspire confidence. The statement of these official witnesses have rightly been relied upon by the learned trial Court. 19. Mr. Manoj Pathak, Advocate, for the accused has vehemently argued that PW-13 S.I. Gurbachan Singh was not carrying the file of case No. 119 of 2008 when the accused was apprehended. Merely that PW-13 S.I. Gurbachan Singh was not carrying the file of FIR No. 119 of 2008 has not caused any prejudice to the accused. 20 Now, as far as statements of PW-3 Rajinder Kumar and PW- 4 Amar Chand are concerned, they were declared hostile but they have categorically admitted their signatures on the memorandum 'X’. Merely that PW-13 S.I. Gurbachan Singh was not carrying the file of FIR No. 119 of 2008 has not caused any prejudice to the accused. 20 Now, as far as statements of PW-3 Rajinder Kumar and PW- 4 Amar Chand are concerned, they were declared hostile but they have categorically admitted their signatures on the memorandum 'X’. The chain of circumstances is complete. 21. The prosecution has sent the samples as well as the bulk through special messenger. The FSL reports are Ext. PW-9/B and Ext. PW-13/J. The contraband was found to be charas. The case property was not tampered with during its transition from the malkhana to the State Forensic Science Laboratory. The seals were found intact as per Ext. PW-9/B and Ext. PW-13/J. The prosecution has fully proved the case against the accused. The charas was recovered from the exclusive and conscious possession of the accused. The statements of DW-1 Beli Ram and DW-2 Parmod Kumar do not inspire any confidence. Since the charas was recovered from the bag of the accused, neither Section 42 nor Section 50 is applicable in this case. It was a case of chance recovery. The police had no prior information that the accused was carrying charas. Since the charas was recovered from the bag, Section 50 of the Act was not required to be followed. The contradictions pointed out by the learned counsel for the accused are only minor in nature. 22. Accordingly, there is no merit in this appeal, the same is dismissed.