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2014 DIGILAW 565 (HP)

Inder Kumar v. State of H. P.

2014-05-13

RAJIV SHARMA, SURESHWAR THAKUR

body2014
JUDGMENT Sureshwar Thakur, Judge. This appeal is directed against the judgment rendered on 8th July, 2010, by the learned Special Judge, Mandi, Camp at Karsog, H.P., in Sessions Trial No.1 of 2009, whereby the appellant has been convicted and sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs.1,00,000/- for the commission of offence under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as ‘NDPS Act’) and in default of payment of fine, he is to suffer simple imprisonment for one year. Further, he has been sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs.10,000/- for the commission of offence under Section 18 of the NDPS Act and in default of payment of fine, he is to suffer simple imprisonment for six months. Both the sentences are to run concurrently. 2.The incident, which led to the lodging of the F.I.R. against the appellant-accused, records the factum of a police patrolling party while having proceeded on 28th June, 2009 from Police Station, Karsog on patrol duty in a Government vehicle driven by Constable Jatinder Kumar on 28th June, 2009, arrived at Chatri Road 2 Kilometers from Kelodhar. On the aforesaid date and time, the patrol party noticed one person coming from Khandar Gali side carrying one black coloured bag on his shoulder. The said person, got perplexed on seeing the police vehicle, retraced his steps to flee from the spot. Though he was directed to stop, yet when he omitted to obey the command of the police, he was chased and on being chased he was apprehended by the police. On having come to be apprehended, he disclosed his name to be Inder Kumar, son of Kanshi Ram, resident of Bhadon, Tehsil Karsog. Bag, carried on his shoulder bore inscription ‘Reebok’, and on it being opened and inspected, it was found to contain two polythene envelopes. The Investigating Officer proceeded to open the bigger of the two envelopes, white in colour and on its opening, it was found to be containing black coloured substance in the shape of sticks and on smelling it was detected to be the ‘Charas’. The second or the other envelope was, too, opened and on its opening it was also found to contain a black coloured substance and on tasting, it was opined to be ‘opium’. The second or the other envelope was, too, opened and on its opening it was also found to contain a black coloured substance and on tasting, it was opined to be ‘opium’. 3.The recovered ‘Charas’ was weighed and was found to be 3 Kg and 750 grams. After weighment, the recovered ‘Charas’ was re­packed in the same envelope and the envelope containing ‘Charas’ was then re-packed in the same bag and was sealed in separate parcel with 14 seals of ‘T’ having come to be affixed on the bulk parcel. The parcel, containing the seized/recovered contraband, is Ext.P-1. 4.On weighment, the recovered opium was found to be weighing 300 grams. It was re-packed in the same polythene envelope Ex.P-6 and the same was sealed in a separate parcel. 4 seal impressions of ‘T’ were affixed on the sealed parcel. Identification memos on both the ‘Charas’ and ‘opium’ was prepared by S.I. Vinod Kumar, which were exhibited as Ext.PA and Ext.PB, respectively. Both the memos, aforesaid, were signatured by the accused, HC Tek Chand (PW-1) and HC Balbir Singh. 5.Samples of seal impression ‘T’ were separately embossed on cloth and the seal after its impression was affixed on NCB-I in triplicate, was handed over to PW-1. Search and seizure memo (Ext.PC) was prepared on the spot by S.I. Vinod Kumar and signed by HC Tek Chand (PW-1) and accused. Printed search and seizure form was also filled by S.I. Vinod Kumar and signed by HC Tek Chand (PW­1) and accused Inder Kumar. Ruqua was prepared on the spot by S.I. Vinod Kumar which was handed over to HHC Partap Singh with a direction to carry the same to Police Station, Karsog for registration of F.I.R. against the accused. Site plan (Ext. PR) of occurrence was prepared by SI Vinod Kumar. Statement of witnesses was recorded by SI Vinod Kumar. Accused was arrested on the spot and arrest memo Ext.PE was prepared. 6.On conclusion of the investigation, for the offence, allegedly committed by the accused, report under Section 173 Cr.P.C. was prepared and filed in the Court of Special Judge, Mandi, Camp at Karsog. 7.Accused was charged for having committed an offence by the learned trial Court. In proof of the prosecution case, prosecution examined so many witnesses. 6.On conclusion of the investigation, for the offence, allegedly committed by the accused, report under Section 173 Cr.P.C. was prepared and filed in the Court of Special Judge, Mandi, Camp at Karsog. 7.Accused was charged for having committed an offence by the learned trial Court. In proof of the prosecution case, prosecution examined so many witnesses. On conclusion of recording of the prosecution evidence, the statement of the accused under Section 313 Cr.P.C. was recorded by the Court in which the accused claimed false implication and an alibi, in as much, as, he therein pleaded, that on the fateful day he was waiting for the bus at Katanda along with two other persons who, on seeing the police personnel, left the bag and fled away whereas, he was questioned and despite his resistance that the bag in question did not belong to him, the case was planted against him. The accused also adduced evidence in defence. On appreciation of evidence on record, learned trial Court convicted and sentenced the accused for his having committed offence under Section 20 of the NDPS Act. 8.The learned trial Court in its impugned judgment, convicted and sentenced the accused and on a threadbare consideration and analysis of the respective testimonies of police witnesses, has come to the clinching conclusion that the accused is guilty for having committed an offence for which he came to be charged and tried. The impugned judgment of learned trial Court unfolds credence having come to be accorded by the learned trial Judge to the testimonies of the official witnesses qua the (i) identity of the accused (ii) the recovery of ‘Charas’ and ‘Opium’ weighing 3 Kg 750 grams and 300 grams respectively; (iii) Weighing of both the recovered items of contraband having been carried out by the Investigation Officer. Identification memos qua ‘Charas’ and ‘Opium’ bearing Ex.PA and Ex.PB having come to be prepared on the spot by the Investigating Officer; and (iv) Search and seizure memos Ext.PC and Ext.PD having been filled up by S.I. Vinod Kumar and it having been signatured by PW-1 HC Tek Chand, HC Balbir Singh and accused Inder Kumar. Furthermore, Ext.P-4 ‘Charas’, packed in parcel Ext.P-1, has been opined by the Forensic Science Laboratory to be falling in that category of contraband, as alleged by the prosecution. Furthermore, Ext.P-4 ‘Charas’, packed in parcel Ext.P-1, has been opined by the Forensic Science Laboratory to be falling in that category of contraband, as alleged by the prosecution. Besides opium Ext.P-7, packed in polythene envelope Ext.P-6, has been opined to be falling in that category of contraband as alleged by the prosecution, in as much, as it being opined to be opium by the Forensic Science Laboratory. 9. The site of occurrence is located at a distance of two kilometers ahead of Kelodhar, which later place, is located at a distance of about 14 kilometers from Police Station, Karsog. All the police witnesses deposed unanimously and in harmony qua the factum of the alleged items of contraband having been recovered from the exclusive and conscious possession of the accused. Hence, the learned trial Court had concluded on appreciation of the evidence of the police witnesses that the charge against the accused/appellant stands sustained. The learned counsel appearing for the appellant concerts to torpedo the judgment rendered by learned trial Court by canvassing (a) that the testimony of the official witnesses/police witnesses is unworthy of credence, in as much, as, when PW-1 (HC Tek Chand) deposed that the arrival of the police party at the site of occurrence was at about 3.45 p.m. with their having proceeded from Police Station, Karsog at about 2 p.m., admittedly located at a distance of 14 kilometers from Karsog, yet with PW-2 (HHC Partap Singh) having deposed qua the fact that of Police party had proceeded from Police Station, Karsog at 3 p.m. and reached the spot at 3.45 p.m., begets a contradiction inter-se in the testimony of PW-1 (HC Tek Chand) and PW-8 (S.I. Vinod Kumar), hence, permeates the prosecution version with inveracity. 10.Capital has been canvassed to be made by the counsel for the appellant, on the score of the above inter-se contradiction qua the timing of departure of PW-1 (HC Tek Chand) and PW-8 (S.I. Vinod Kumar) from the Police Station and, its concomitantly discrediting the factum of their simultaneous arrival and also the presence of either of the two at the time of alleged search, seizure and recovery of the contraband from the purported exclusive and conscious possession of the accused. However, the contention is not sustainable, for the simple reason that the contradiction as projected, is neither blatant nor stark. However, the contention is not sustainable, for the simple reason that the contradiction as projected, is neither blatant nor stark. Besides, lack of deposition with harmonious exactitude qua the timing of departure of each from the police station, would not detract from the substratum of the prosecution version, especially when both harmoniously, uniformly and consistently depose, of each having arrived at the site of occurrence at 3.45 p.m. Moreover, when a close study and studied analysis of their respective testimonies, as well, as other evidence on record to be discussed hereinafter, omits to disinter lack of presence of either of the two at the time of search, seizure and recovery of contraband from the alleged conscious and exclusive possession of the accused, then, a mere contradiction qua departure of each from the police station cannot, for reiteration detract from the veracity or the genuineness of the prosecution case about the commencement of the proceedings at 3.45 p.m at the site of occurrence. 11.The learned counsel for the accused appellant has with force and vigour contended to reverse the findings of conviction and sentence recorded against the accused appellant on the score of the investigating officer having deliberately omitted to join independent and impartisan witnesses, so as to imbue the proceedings with a hue of transparency and impartisanship. The contention regarding availability of independent and impartial witnesses, is, anchored upon the admissions made by PW-1 and PW-8, in their cross-examination about shops being available within a distance of 1-1/2 K.M. from Kilodhar, as also, on the strength of Ext. DA, obtained under the Right to Information Act and its portraying the factum of buses plying on the route comprising/covering the site of occurrence at the time when proceedings relating to search, seizure and recovery of contraband, commenced. Hence, it has been contended that when independent witnesses were available to be joined, the omission to join them, was deliberate as well as intentional, as such, it makes inroads into the veracity of the prosecution version. Hence, it has been contended that when independent witnesses were available to be joined, the omission to join them, was deliberate as well as intentional, as such, it makes inroads into the veracity of the prosecution version. 12.The force and vigour of the above contention addressed before this Court by the learned counsel for the accused-appellant, would have commanded sway with this Court and would have immense persuasive value, only in the event of it having been firmly and cogently established by way of examination by the accused, of the conductor and driver of each of the buses plying on the route and theirs deposition unravelling absolute synchronization qua the time of their arrival at the site of occurrence, with the commencement of proceedings relating to search and seizure. However, the above evidence is amiss, as each of the drivers and conductors of the buses plying on the route, where the site of occurrence, is located, have not been examined. Hence, in the absence of their examination on behalf of the accused/defence the inevitable conclusion which ensues, is that such independent witnesses, were not immediately available to be joined by the Investigating Officer, at the time of carrying out the proceedings, at the site of occurrence. Obviously, it also to be concluded that omission on the part of the Investigating Officer to join any of the persons/passengers occupying the buses plying on the route where the proceedings commenced is not deliberate, as they were not immediately available to be joined. Hence, their being not joined renders the prosecution version neither flawed nor unbelievable. 13.The contention on the part of the learned counsel appearing for the accused-appellant that despite availability of a commercial locality, in, the vicinity of the site of occurrence and omission on the part of the Investigating Officer, to join any of the shopkeepers constitutes, transgression of the mandate of law envisaging a duty cast upon the Investigating Officer, to join independent and impartial witnesses attains no firm legal foothold, in as much, as, Jauni Ram vs. State of H.P. 2005(1) SLJ 186 enshrines the principle of non-joining of independent witnesses being not fatal to the prosecution case, especially when the nabbing of the accused, is at an open place and then none association is inter se deliberate and unintentional. As a sequitor when a close and studied analysis of the testimonies of the official witnesses, does not disclose that they had animosity towards the accused, so as to deliberately omit to associate independent witnesses or are here partisan. As a corollary that when the evidence on record does not project any inimicality of the I.O. towards the accused, besides when the proceedings commenced at a secluded and open place which remained at the relevant time unvisited by any person either on foot or while travelling in a bus, the consistent version qua the occurrence deposed by the police witnesses does not acquire any taint nor is not uninspiring being unslanted. This Court holds that the test to determine intentional omission on the part of the Investigating Officer to join independent witnesses is anvilled upon the factum of their immediate availability. 14.The counsel for the accused appellant has also projected before this Court that the seal after use was handed over to PW-1 who however, omitted to place it on record. Omission on the part of PW-2 H.C. Pratap Singh to place the seal on record has been canvassed to be constituting a vital blow to the prosecution case rendering it suspect, in as much ,as it manifesting the fact of case property having come to be tampered with. However, in a judgement reported in Hira Giri Alias Hardev Giri vs. State of H.P. 2003(2) Shim.L.C 350 wherein it has been held that the factum of non production of seal would be rendered inconsequential nor would its non production give any leverage to the contention that the entire seizure is illegal, especially when, as in, this case where the link evidence comprised in search and seizure memos has come to be proved to be signatured by the police officials, as well as by the accused establish the guilt of the accused. Besides with cogent evidence manifesting the despatch to all quarters concerned of the seized contraband bearing the seal impression akin to the one embossed on the parcel. Moreover, with their being no cogent evidence depicting tampering with case property at any stage aborts any conclusion that absence of production of seal at the instance of the prosecution, dethrones the prosecution version. 15.Lastly counsel for the accused/appellant raises the plea of alibi. Moreover, with their being no cogent evidence depicting tampering with case property at any stage aborts any conclusion that absence of production of seal at the instance of the prosecution, dethrones the prosecution version. 15.Lastly counsel for the accused/appellant raises the plea of alibi. The plea of alibi is canvassed to be sustained by its being comprised in the answer to question No. 54 in the statement of accused recorded under Section 313 Cr.P.C. A reading of the answer to it by the accused unravels the fact that the accused-appellant has raised the plea of his presence on the fateful day, waiting for the arrival of the bus at Katanda and two other persons being also present there, however on seeing the police party he other two persons, left the bag on the spot and fled away. Nonetheless, the accused as questioned by the police and though he disclaimed ownership of the bag, yet he was brought to the police station and was falsely implicated in the case. The said plea of alibi has been concerted to be fastened truth on the strength of suggestion in tune therewith having been made during the cross-examination of the Investigating Officer. Besides, it is canvassed to its having acquired veracity, given the testimony of DW-2, who has been argued to have deposed intandem therewith. However the plea of alibi to the considered mind of this Court is un-sustainable in as much as (a) that the accused in his answer to the question No. 54 of his statement recorded under Section 313 of Cr.P.C having categorically recorded the fact of two other persons who were present at the site of occurrence having after fleeing from the spot on seeing the police, left their bag on the spot. However DW-2 Daulat Ram the person who was present alongwith the accused at the apposite time and whose deposition, is pressed in to service, to, sustain the plea of alibi, has omitted to depose the fact as deposed by the accused in his answer to question No. 54 in his statement recorded under Section 313 of Cr.P.C about such two persons having fled away from the spot on seeing the police theirs having left behind a bag. The omission on the part of DW-2 to depose the fact of such two other persons having after feeling therefrom left behind a bag on the spot comprises a contradiction inter-se the answer by the accused to question No. 54 in his statement recorded under Section 313 of Cr.P.C with the deposition of DW-2. The contradiction defeats and smothers the, plea of alibi, as raised by the accused. Consequently an inference can also be drawn that the bag from which the contraband was recovered, in, a manner as canvased by the prosecution was at the relevant time held and possessed by the accused- appellant, as such, he was in exclusive and conscious possession thereof. Moreover what further renders untruthful the plea of alibi is the fact of DW-1 conceding to the fact of his being a resident of same panchayat as the accused. Hence, his being interested to depose a tutored version to exculpate the accused from criminal liability. 16.The Court on its considered and circumspect appraisal of the evidence on record disinters that the entire proceedings relating to search seizure and recovery of the contraband from the conscious and exclusive possession of the accused has been firmly established, by (a) entrenched and potent evidence, comprised in the factum of seizure memos thereto having been proved to be recorded at the site of occurrence, (b) their being firm connectivity inter-se the seized contraband with the affirmative opinion qua the contraband sent for analysis to FSL.Consequently, this court finds that there is no warrant to interfere with the reasoned and balanced findings anvilled upon mature appreciation of evidence by the learned trial Court. Accordingly, the appeal is dismissed.