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2014 DIGILAW 598 (HP)

Dogaru v. State of H. P.

2014-05-20

RAJIV SHARMA, SURESHWAR THAKUR

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JUDGMENT Sureshwar Thakur, Judge. This appeal is directed against the judgment, rendered on 16th July, 2008, by the learned Special Judge, Fast Track Court, Chamba, District Chamba, H.P., in Sessions Trial No.27/2008/07, whereby the appellants have been convicted and sentenced to undergo rigorous imprisonment for ten years and to a pay fine of Rs.1,00,000/- each and in default of payment of fine, to further undergo rigorous imprisonment for a period of one year each for the commission of offence under Section 20(c) of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as ‘NDPS Act’). 2. The facts, relevant to decide the instant case, are that on 9.1.2007, Inspector Jatinder Kumar, ASI Onkar Singh, H.C. Bhupinder, H.C. Dev Raj, constable Yakoob Mohammad, constable Baldev, HHC Baldev, HHC Budhi Singh and HHC Udham Singh were present at Koti, in connection with traffic checking and Nakabandi. Independent witnesses, Pappu Kumar and Ramesh had also arrived there. At about 11.30 a.m., while Inspector Jatinder Kumar was talking with Pappu and Ramesh, the accused persons carrying a Pithu each on their back were seen coming from Tissa side. On sighting the police party, they attempted to flee. Their fleeing, aroused the suspicion of the police, resulting in theirs being chased and on chase both the accused were apprehended. On search of the Pithu, carried by accused Dogru, it was found to contain a polythene bag having charas in it. Similarly, on search of the Pithu, carried by accused Shyam Lal, it was also found to contain a polythene bag having charas in it. Constable Yakoob Mohammad was deputed to fetch weights and scales. Charas, recovered from the Pithu, carried by accused Dogru, was weighed and on weighing, it was found to be 7 kilograms. Two samples of 25 grams each were separated from the recovered charas. The samples were separately parceled and sealed with seal “T”. The remaining charas was put in the same Pithu and it was also parceled and sealed with the same seal “T”. Thereafter, the charas recovered from the Pithu, carried by accused Shyam lal, was weighed, which, on weighing was found to contain 7 kilograms of charas. Two samples of 25 grams each were also drawn from the recovered charas. The samples were separately parceled and sealed with seal “T”. Thereafter, the charas recovered from the Pithu, carried by accused Shyam lal, was weighed, which, on weighing was found to contain 7 kilograms of charas. Two samples of 25 grams each were also drawn from the recovered charas. The samples were separately parceled and sealed with seal “T”. The balance charas was put in the same Pithu and the same was also parceled and sealed with the same seal “T”. Samples of the seal were separately taken on a piece of cloth. Seal, after use, was handed over to independent witness Ramesh Kumar. The samples and parcels, containing balance charas, were taken into possession by the police vide separate seizure memo which was signed by independent witnesses Ramesh Kumar and Pappu. Both the accused also appended their signatures on the seizure memo. NCB form was filled in on the spot. Ruqua was prepared on the spot which was sent through constable Baldev to the police station for recording of a formal FIR. Copy of the ruqua was sent to SP Office, Chamba through HHC Budhi Singh. Site plan was prepared according to the spot. Statements of the witnesses were also recorded. The parcels, containing samples and case property, along with sample seal and other documents, were produced before ASI Amar Singh, who resealed the parcels with seal “M” and prepared reseal memo to that effect. Thereafter, he deposited the parcels and samples, along with documents, with the MHC. A special report was sent to SP office, Chamba. Two parcels of the samples, comprising one sample drawn from the bulk charas, recovered from each of the accused, along with relevant documents, were sent to the laboratory for chemical analysis vide RC No.7/07. The samples, on chemical analysis, were opined to be of charas. 3.On conclusion of the investigation, into the offence, allegedly committed by the accused, report under Section 173 Cr.P.C. was prepared and filed in the Court. 4.The accused persons were charged for their having committed an offence punishable under Section 20 (c) of the NDPS Act by the learned trial Court to which they pleaded not guilty and claimed trial. In order to prove its case, the prosecution examined 13 witnesses. On closure of the prosecution evidence, the statements of the accused under Section 313 of the Code of Criminal Procedure, were recorded in which they pleaded innocence and claimed false implication. In order to prove its case, the prosecution examined 13 witnesses. On closure of the prosecution evidence, the statements of the accused under Section 313 of the Code of Criminal Procedure, were recorded in which they pleaded innocence and claimed false implication. 5.The witnesses to the recovery are PW-2 constable Yakoob Mohammad, PW-3 constable Baldev, PW-5 HHC Budhi Singh and PW-13 Inspector Jatinder Kumar, the Investigating Officer and two independent witnesses, namely, Ramesh Kumar (PW-6) and Pappu, who remained unexamined.All the police/official witnesses have deposed in unison qua the genesis of the prosecution case. There, is, absolute harmony and lack of inconsistency, in, their respective depositions, qua the recorded factum of, on 9.1.2007, at about 11.30 a.m. at place Koti, the police party and independent witnesses, namely, Ramesh and Pappu being present. Each deposed, in square, forthright and categorical terms qua the fact of, theirs having at the site and time, aforesaid, noticed two persons coming from Tissa side each carrying a Pithu on their respective backs. On sighting the police, they attempted to flee and on their conduct arousing suspicion, hence, prompted the police to chase them and on chase, theirs having come to be nabbed. On search of the Pithus, carried by each of them, each were found to contain charas packed in polythene bags, which, on weighment, was found to be 7 kilograms each. Each has deposed in harmony and in consistency qua the fact of samples having been drawn there-from, as also, qua the fact of the samples having been sealed with seal impression “T”, besides the bulk charas also having come to be sealed. Sample seals have been proved to be bearing Ex.PW4/A to Ex.PW4/D and NCB form bearing Ex.PW11/C and Ex.PW11/D. The abstract of Malkhana register has been deposed and proved to be Ex.PW-13/K. PW-4 constable Deepak Kumar has deposed qua the resealing of the parcels by ASI Amar Singh with seal “M” being affixed by the later on each parcel and separate reseal memo having come to be prepared qua the fact aforesaid. PW-7 constable Harnam Singh has deposed qua the delivery of special report to SP Office, Chamba on 11.1.2007. PW-8, H.C. Ramesh has deposed qua the deposit of two big parcels along with seals “T” and “M” along with sample seal and NCB form and four sample parcels sealed with seal “T” and “M” on 9.1.2007 by ASI Amar Singh. PW-7 constable Harnam Singh has deposed qua the delivery of special report to SP Office, Chamba on 11.1.2007. PW-8, H.C. Ramesh has deposed qua the deposit of two big parcels along with seals “T” and “M” along with sample seal and NCB form and four sample parcels sealed with seal “T” and “M” on 9.1.2007 by ASI Amar Singh. He continued, to, depose that, on, 10.1.2007, he sent through constable Mandan Lal (PW-9) vide R.C. No.7/07, two sample parcels along with copy of FIR, recovery memo, NCB form to CFSL, Chandigarh. CFSL, Chandigarh tendered its opinion qua the contraband on 27.2.2007. ASI Amar Singh has corroborated the testimony of PW-8 H.C. Ramesh qua the fact as deposed by the former qua resealing of parcels containing samples and case property with seal “M” besides resealing memo Ex.PW11/B. ASI Amar Singh, PW-11 has proved the fact of his scribing FIR Ex.PW11/A. The charas, weighing 7 kilograms each, was recovered from the Pithus, carried by each of the accused. The factum of recovery of charas, in the manner aforesaid, has been unequivocally and harmoniously deposed by the consistent testimonies of the police/official witnesses. 6. Though, the counsel for the accused/appellants contends before this Court, that, the mandatorily enjoined compliance of Section 50 of the NDPS Act, of the accused being consciously made aware of their right, to be searched before a Gazetted Officer, was not afforded to the accused, hence, constituting a blatant transgression of the mandatorily enjoined requirement, sequeling vitiation of the entire proceedings. However, the above contention carries no force and weight in the light of the fact that the aforesaid enjoined statutory requirement holds good, only in the event of the personal search of the accused, in as much as, when the recovered contraband is carried either in the pockets or in a manner which requires, its, being detached from the body of the accused. Compliance to the above requirement has been concluded by a catena of decisions to be not necessary, when charas is found to be carried, in, either a bag carried in the hands of the accused or in a bag slung on the shoulders or as in this case carried in a Pithu, hung on the back of the accused. Compliance to the above requirement has been concluded by a catena of decisions to be not necessary, when charas is found to be carried, in, either a bag carried in the hands of the accused or in a bag slung on the shoulders or as in this case carried in a Pithu, hung on the back of the accused. With judicial verdicts voicing that, the manner in which the accused carried the contraband in the Pithus carried on their back, to be not constituting a manner of its being carried to be, hence, necessitating their personal search. As a concomitant, it, has to be concluded that when the enshrined/ envisaged requirement of Section 50 of the NDPS Act warrants affording/giving option to the accused to be searched before a Gazetted Officer only when any contraband, is, to be recovered from his personal search, which personal search of the accused was not necessary for reasons aforesaid, prior to the recovery of the contraband, as a sequel, there was no transgression of the mandate of Section 50 of the NDPS Act. 7.It has been spelt out, hereinabove that the entire proceedings of recovery and seizure of the contraband from the conscious and exclusive possession of the accused has been proved by the forthright, harmonious and consistent testimonies of the police/officials witnesses. Even they had taken to associate two independent witnesses in the proceedings relating to the search, seizure and recovery of the contraband from the exclusive and conscious possession of the accused, hence, it would not be open to the counsel for the appellant to contend that there has been any fatal omission on the part of the Investigating Officer to associate independent witnesses, in the exercise relating to search, seizure and recovery of the contraband. On the contrary, association of the independent witnesses, by the Investigating Officer in the proceedings relating to the search, seizure and recovery of the contraband from the exclusive and conscious possession of the accused accentuates, the sanctity and validity of the proceedings commenced and concluded by the Investigating Officer. On the contrary, association of the independent witnesses, by the Investigating Officer in the proceedings relating to the search, seizure and recovery of the contraband from the exclusive and conscious possession of the accused accentuates, the sanctity and validity of the proceedings commenced and concluded by the Investigating Officer. 8.Even though, there are some improvements in the statements of the witnesses regarding the colour of the Pithus, in as much as, PW-2 Yakoob Mohammad in his cross-examination, deposed that he had, too, stated in his previously, recorded statement under Section 161 of the Cr.P.C. that the accused persons had khakhi and blue colour Pithus on their backs, whereas, on his being confronted with Ex. DA, his previous statement, it, was revealed that Ex. DA omitted to record the above fact. However, his improved deposition in Court qua colour of the Pithus, would not detract from the efficacy of his categorical statement in the Court, wherein he has emphatically pronounced upon the fact of the Pithus shown in the Court, being the same as were recovered from the conscious and exclusive possession of the accused. Moreover, when all the witnesses have also consistently, with inter se unanimity deposed qua the fact of charas having been recovered from each of the accused in the manner, as alleged , hence, it can be concluded that the prosecution has clinched the said fact. 9.The weight of the sample parcels on being separated from the bulk parcel was 25 grams each. The sample parcels, as divulged by the report of Chemical Examiner, bore then weights of 23.20 grams and 18.40 grams respectively. The said reduction of weight, in the samples is contended to be impinging upon the efficacy of the truth of the sample parcels drawn from the bulk, besides sequeling the deduction, of, the opinion rendered on the samples being qua charas not recovered from the alleged conscious and exclusive possession of the accused. As such the consummate link is contended to be not establishing the guilt of the accused. As such the consummate link is contended to be not establishing the guilt of the accused. However, the above reduction, is, in the face of the fact that though the sample parcels were dispatched to the CFSL, Chandigarh for recording its opinion, on 10.1.2007, yet, the report having come to be prepared on 27.2.2007, hence, after a lapse of 1 month and 16 days and it not having been proved that such reduction in weight of the sample parcels, which, they initially bore at the time of their dispatch, could not be attributable to desiccation/evaporation/drying of the moisture in the charas, hence, leading to a reduction in weight. Consequently, when it has not been concerted by the defence by putting apposite suggestions to the prosecution witnesses or even by theirs leading into the witness box the Chemical Examiner, to, state that such reduction cannot be attributable to desiccation/evaporation of the moisture contents of charas. Therefore, no, force is to be accorded to the contention put forth, by the learned counsel for the appellants, that, the reduction in weight, is, a sequel to the fact that the sample as were sent for analysis and on which the opinion was returned were, not, on the ones as were at the apposite stage separated from the bulk charas, carried and recovered from the conscious and exclusive possession of the accused. 10.Finally, the independent witness, even if he has resiled from his previous statement recorded in writing, nonetheless, PW-6 Ramesh, the independent witness has not denied his signatures on sample parcels as well as seizure memo. His admitting, his signatures on the aforesaid, conveys the factum of his presence, at the site of the occurrence, where the proceedings relating to the search, seizure and recovery of the contraband were commenced and concluded. Moreover, the fact that he has stated that his signatures on the aforesaid were forcibly obtained by the police, does not comprise a plausible explanation, especially when, he, has not been shown to be a person, who while having criminal antecedents, would, to, smother his being implicated in a case by the police, took, to succumb/wilt under the pressure of the police to append his signatures on the memos. Consequently, his having reneged from his previous statement recorded in writing pales into insignificance and gives no leverage to the defence to canvass that the prosecution version, is eroded of its veracity. Consequently, his having reneged from his previous statement recorded in writing pales into insignificance and gives no leverage to the defence to canvass that the prosecution version, is eroded of its veracity. 11.In view of the above, we find that the findings of the conviction, recorded by the learned trial Court below, are based on a mature and balanced appreciation of evidence on record. Hence, the findings do not necessitate irreverence. Accordingly, the appeal being devoid of merits is dismissed.