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Himachal Pradesh High Court · body

2014 DIGILAW 777 (HP)

Nanak Chand v. State of H. P.

2014-06-21

RAJIV SHARMA, SURESHWAR THAKUR

body2014
JUDGMENT Per Rajiv Sharma, Judge. Since common questions of law and facts are involved in both the appeals, the same were taken up together for hearing and are being disposed of by a common judgment. 2. These appeals are instituted against the judgment dated 8.7.2010 rendered by learned Special Judge, Fast Track Court, Chamba in sessions trial No. 23 of 2009, whereby the appellants/accused (hereafter referred to as the “accused for the sake of convenience), who were charged with and tried for offences punishable under Sections 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the “Act” for the sake of convenience), were convicted and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1 lac each and in default of payment of fine to further undergo rigorous imprisonment for one year under Sections 20 and 29 of the Act. 3. The case of the prosecution, in a nutshell, is that on the intervening night of 11/12th January 2009, PW13 Inspector/SHO R.P. Jaswal along with PW7 HC Dev Raj, HC Anirudh, Constable Surinder Kumar, Constable Pawan Kumar, PW9 Constable Latif Mohammad, Constable Yakoob Mohammad was proceedings in Government Gypsy No. HP-44-0068 being driven by driver Neeraj Kumar towards Sillagharat to lay a ‘naka’. When they reached near Ardi Modh at about 1.30 A.M., the accused were seen coming on the road carrying something on their shoulders and back. They were asked to put down the luggage carried out by them. Their names and addresses were ascertained. On getting suspicious that all of them might be carrying narcotic substance, PW13 Inspector R.P. Jaswal informed the accused vide separate memos about their legal right to be searched before the Magistrate or Gazetted Officer, but they consented to be searched by the police. Thereafter, the SHO gave his personal search firstly to the accused Chain Lal and memo to this effect was prepared. Thereafter, the bori (gunny bag) carried by accused Chain Lal was searched and charas in the shape of balls and sticks was recovered. The charas weighed 28.300 grams. Out of recovered charas, two samples of 26 grams each were separated for chemical analysis and sealed with twelve seals of seal impression “A”. The balance charas was put in the same bag and sealed in a parcel with twelve seals of seal impression “A”. The charas weighed 28.300 grams. Out of recovered charas, two samples of 26 grams each were separated for chemical analysis and sealed with twelve seals of seal impression “A”. The balance charas was put in the same bag and sealed in a parcel with twelve seals of seal impression “A”. NCB form in triplicate was filled in. Similarly, accused Nanak Chand was informed about his legal right to be searched before the Magistrate or Gazetted Officer, but he consented to be searched by the police. Thereafter, a green coloured rucksack was searched. It was found containing charas in the shape of balls and sticks. It weighed 27 kgs. Out of sample charas, two samples of 26 grams each were separated for analysis. The samples were sealed in the parcels with seal impression “A”. The remaining charas was put in the rucksack, which was sealed in a parcel with twelve seals of seal impression “A”. NCB form was filled-in. Similar procedure was adopted qua accused Prem Lal and Tek Ram from whom charas weighed 27 kgs and 27.500 grams respectively was recovered. Sampling and sealing process was done in accordance with law. The impression of seal “A” was taken on a piece of cloth. Firstly only four samples were sent to FSL, Junga for analysis and report Ext.PX was obtained, but thereafter, entire case property along with samples was sent to FSL Junga for analysis and report of chemical examiner, Ext.PY was obtained. The investigation was completed and the challan was put up in the trial court after completing all the codal formalities. 4. The prosecution examined as many as fourteen witnesses in support of its case. The accused were examined under Section 313 Cr.P.C. They denied the case of the prosecution and claimed innocence. They also examined two witnesses in their defence. Learned trial court convicted and sentenced the accused under Sections 20 and 29 of the Act vide judgment dated 8.7.2010, as stated hereinabove. Hence, the appeal. 5. Mr. Anup Chitkara and Mr. Vinay Thakur, learned Advocates, have vehemently argued that the prosecution has failed to prove its case against the accused. 6. Mr. Parmod Thakur, learned Addl. Advocate General, has supported the impugned judgment dated 8.7.2010. 7. We have heard learned counsel for the parties and have also gone through the impugned judgment and record carefully. 8. Mr. Anup Chitkara and Mr. Vinay Thakur, learned Advocates, have vehemently argued that the prosecution has failed to prove its case against the accused. 6. Mr. Parmod Thakur, learned Addl. Advocate General, has supported the impugned judgment dated 8.7.2010. 7. We have heard learned counsel for the parties and have also gone through the impugned judgment and record carefully. 8. PW1, Chatter Singh, deposed that on 13.1.2009, SHO R.P. Jaswal, Police Station Chamba handed over to him special report for being delivered at S.P. office, Chamba. He handed over the special report to Om Parkash, Assistant Reader to S.P. Chamba. On the same day, MHC Kailash Chand handed over four parcels, containing sample charas, sample seal and concerned papers vide R.C.No.12/09 for being taken to FSL, Junga. He delivered the samples and the related documents at FSL Junga and obtained receipt on the back of the RC and handed over the same to MHC. 9. PW2, Om Parkash, deposed that on 12.1.2009, D.K. Chaudhary, Addl. S.P., Chamba, handed over to him copy of Ruqua, Ext.PW2/A, and he made entry to this effect in receipt register at Sr. No.404/Vd/09 dated 12.1.2009. According to him, on 13.1.2009 at 1.10 P.M., HC Chatter Singh handed over to him special report of the case. After making an entry in receipt register at Sr. No. 408/VD/09 dated 13.1.2009, handed over it to the then Addl. S.P., D.K. Chaudhary, who after perusal returned to him for being kept in the record. The special report was Ext.PW2/B. 10. PW3, ASI Kuldeep Singh, deposed that on 12.1.2009, at about 6.45 P.M., on receipt of Ruqua brought by Constable Latif Mohammad, FIR, Ext.PW3/A was recorded at Police Station Sadar, Chamba. He also made endorsement on Ruqua vide Ext.PW3/B. 11. PW4, Constable Deepak Kumar, proved daily station dairy No.3, dated 12.1.2009, Ext.PW4/A. 12. PW5, HC Kailash Chand, deposed that on 12.1.2009, Inspector R.P. Jaswal deposited with him one big parcel containing 28.248 grams charas recovered from the accused Chain Lal along with sample seal, which was sealed with twelve seals of seal impression “A”, two sample parcels each containing 26 grams charas along with sample seal, sealed with three seals of seal impression “A”, NCB form in triplicate and recovery memo. He also deposited on the same day and time, one big parcel marked as Mark B sealed with 12 seals of seal A containing 26.948 grams charas recovered from the accused Nanak Chand along with two sample parcels containing 26 grams charas each sealed with seal impression “A”, NCB-1 form in triplicate, recovery memo and sample seal. He further deposed that on the same day and time, he also deposited with him one big parcel marked as mark “C” sealed with twelve seals of seal impression “A” containing 26.948 grams charas from the accused Prem Lal along with sample seal and two sample parcels containing 26 grams charas each sealed with three seals of seal impression “A”, NCB form in triplicate, recovery memo and sample seal. Similarly, he also deposited with him one big parcel marked as mark D sealed with 12 seals of seal impression “A”, containing 27.448 grams charas along with sample seal, two sample parcels each sealed with three seals of seal impression “A” containing 26 grams, NCB-1 form in triplicate, recovery memo and sample seal. He also proved abstract of malkhana register vide Ext.PW5/A. He further deposed that on 13.1.2009, one sample parcel separated from the charas recovered from each accused, i.e. four sample parcels, along with NCB form in triplicate of each accused, recovery memo and sample seal of each accused were sent to the laboratory through Constable Chatter Singh No.312 vide R.C. No.12/09 vide Ext.PW5/B. Constable Chatter Singh after depositing the sample parcel returned the RC to him. According to him, so long the parcels remained in his custody, he did not do any tampering nor did he allow anybody to do any tampering. In cross-examination, he deposed that he had checked the seals affixed on the parcel. 13 PW6, SI Diwan Chand, deposed that the case file was handed over to him for investigation by Inspector R.P. Jaswal on 1.4.2009. He recorded statements of MHC Kailash Chand, HHC chatter Singh and Constable Om Parkash under Section 161 Cr.P.C. 14. PW7, HC Dev Raj, deposed that on 12.1.2009, at about 1.30 P.M., he, SHO R.P. Jaswal, HC Anurodh, Constable Yakoob, Constable Pawan Kumar, Constable Suridner Kumar, Constable Latif Mohammad along with vehicle were present near Ardi Modh on Chamba-Sillagharat Road. They reached there at 1.30 A.M., i.e. intervening night of 11/12.1.2009. PW7, HC Dev Raj, deposed that on 12.1.2009, at about 1.30 P.M., he, SHO R.P. Jaswal, HC Anurodh, Constable Yakoob, Constable Pawan Kumar, Constable Suridner Kumar, Constable Latif Mohammad along with vehicle were present near Ardi Modh on Chamba-Sillagharat Road. They reached there at 1.30 A.M., i.e. intervening night of 11/12.1.2009. The accused came from Sillagharat Road side towards Chamba carrying ‘Boru’ and rucksacks on their back and shoulders. They were stopped by the SHO and they were asked as to where they were going during night hours. They could not give satisfactory reply. Their names and addresses were ascertained. They were informed of their legal right to be searched before a Magistrate or a Gazetted Officer as the police suspected that they were carrying narcotic substance. They consented to be searched by the police. SHO gave his personal search firstly to the accused Chain Lal vide memo, Ext.PW7/B. Thereafter, ‘gunny bag’ carried by the accused Chain Lal was searched, which was containing charas in the shape of balls and sticks. The recovered charas weighed 28.300 grams. Two samples of 26 grams each were drawn from the recovered charas. These were sealed in separate parcels with seal impression “A”. Three seals were affixed on each sample parcel. Balance charas was also sealed in a parcel with twelve seals of seal impression “A”. NCB form in triplicate was filled in on the spot. Thereafter, same procedure was adopted with accused Nanak Chand, Prem Lal and Tek Chand. Charas weighing 27 kgs, 27 kgs and 27.500 grams was recovered from them respectively. Sampling and sealing process was done in accordance with law. NCB forms were filled in. On 18.8.2009, as per the order of the court, MHC, Police Station, Sadar, Chamba, handed over to him case property of three cases i.e. case No.264/2008, 13/2009 and 134/2009 along with guard and vehicle for being taken to FSL Junga, vide R.C. No.153/2009 along with relevant documents. On 19.8.23009, when he reached FSL Junga with case property, Scientist raised objections that separate RC of each case was required to be prepared and samples of each case were also required to be brought with the case property. He informed MHC, Police Station Sadar Chamba regarding objections through telephone. The MHC prepared separate RC of each case and sent the RC, sample and docket of each case to FSL Junga through Constable Pawan Kumar No.426. He informed MHC, Police Station Sadar Chamba regarding objections through telephone. The MHC prepared separate RC of each case and sent the RC, sample and docket of each case to FSL Junga through Constable Pawan Kumar No.426. Since the case property was not received at FSL Junga on 19.8.2009 because of objections, so he kept the case property at Police Station Chotta Shimla and deposited the case property at FSL Junga on 20.8.2009 when Pawan Kumar handed over to him separate RC No.154/09 of the case. After depositing the case property at FSL Junga, he obtained receipt on the RC. After examination, the case property was handed over to him on 22.8.2009. He deposited the same with the MHC. According to him, so long the case property remained in his custody, he did not do any tampering nor was anybody permitted to do so. In cross-examination, he deposed that seizure memo and Ruqua were scribed by the SHO. No other official scribed any other document except him and SHO. According to him, it took about 10-15 minutes to prepare the consent memo as it was on printed form. 15. PW8, Pawan Singh, Constable No.426, also corroborated statement of PW7 HC Dev Raj the manner in which the accused were intercepted, the charas was recovered, sampling and sealing process was done. According to him, Ruqua was prepared and sent to the Police Station through Constable Latif Mohammad. Copy of the Ruqua was given to him for being delivered to Addl. S.P. Chamba and he delivered the same at the residence of Addl. S.P. Chamba on the same day at about 7.00 A.M.. On 19.8.2009, MHC Pawan Kumar handed over to him four sample parcels marked as “A”, “B”, “C” and “D”, each sealed with three seals of seal impression “A”, for being taken to FSL, Junga vide RC No.154/09. He deposited the parcels with HC Dev Raj at FSL, Junga along with RC and documents. 16. PW9, Constable Latif Mohammad, also corroborated the statements of PW7 HC Dev Raj and PW8 Constable Pawan Singh the manner in which the accused were intercepted and charas was recovered from their possession. He also deposed the manner in which the sampling and sealing process was completed strictly in accordance with law. According to him, Ruqua was prepared and the same was handed over to him for being taken to Police Station. He also deposed the manner in which the sampling and sealing process was completed strictly in accordance with law. According to him, Ruqua was prepared and the same was handed over to him for being taken to Police Station. He handed over the Ruqua to MHC at Police Station, on the basis of which, FIR was registered. 17. PW10, HC Pawan Kumar, deposed that on 18.8.2009, HC Diwan Chand deposited with him four big parcels sealed with 12 seals each of seal impression “A”, eight sample parcels sealed with three seals each. On that very day, as per RC No.153/09, entire case property of cases No. 13/09, 134/09, 264/08 was sent to the FSL Junga vide docket No.3846/5-A dated 18.8.2009 through HC Dev Raj. On the same day, he received telephonic call from HC Dev Raj that separate docket and separate RC of each case were required to be issued. He also told him that one sample which had already been examined by the FSL was also required to be sent. According to him, on the same day, vide RC No.154/09 dated 19.8.2009, Ext.PW10/C balance samples of case No.13/09 along with documents were sent to the laboratory through Constable No.426 Pawan Singh. He further deposed that so long the case property remained in his custody, no tampering was done. 18. PW11, HC Diwan Chand, deposed that on 23.7.2009, case property of case No.13/09 was deposited with him by the MHC Pawan Kumar. He kept the case property under his supervision and handed over the same to MHC Pawan Kumar on 18.8.2009. He made entry in the malkhana register at Sr. No.2101. 19. PW12, ASI Kuldeep Singh, deposed that on 12.1.2009 on receipt of Ruqua through Constable Latif Mohammad, FIR, Ext.PW3/A was recorded at Police Station, Sadar, Chamba. 20. PW13, Inspector R.P. Jaswal, deposed the manner in which the accused were apprehended and the charas was recovered from their possession. He also deposed the manner in which the charas was weighed and the sampling and sealing process was completed, strictly in accordance with law. He prepared Ruqua, Ext.PW13/A, which was handed over to Constable Latif Mohammad for being taken to the Police Station. Copy of Ruqua was sent to the S.P. Office through Constable Pawan Kumar. Spot was inspected and site plan, Ext.PW13/B was prepared. Proceedings on the spot were carried out in search light and in the light of vehicle. He prepared Ruqua, Ext.PW13/A, which was handed over to Constable Latif Mohammad for being taken to the Police Station. Copy of Ruqua was sent to the S.P. Office through Constable Pawan Kumar. Spot was inspected and site plan, Ext.PW13/B was prepared. Proceedings on the spot were carried out in search light and in the light of vehicle. According to him, since the place was isolated, the independent witnesses could not be associated. 21. PW14, HC Yog Raj, deposed that on 19.8.2009, HC Dev Raj, P.S. Sadar, Chamba had deposited four parcels duly sealed with seal impression “A” of FIR No.13/09, Police Station Sadar Chamba along with case properties of two other cases. The case properties were deposited in Police Station East because the concerned Head Constable could not deposit the same at FSL Junga. 22. It is duly established on record from the statements of PW7 HC Dev Raj, PW8 Constable Pawan Singh, PW9 Constable Latif Mohammad and PW13 SHO R.P. Jaswal that the search and seizure of the contraband was done strictly in accordance with law. PW13 SHO, R.P. Jaswal, informed each accused about their legal right to be searched before the Magistrate or Gazetted Officer, however, they consented to be searched by the police. He also gave his personal search to each accused. The contraband was weighed on an electronic machine, which was in the kit of the Investigating Officer. The sealing process of samples and the bulk was completed. According to statements of PW7 HC Dev Raj and PW9 Constable Latif Mohammad, in each case, two samples of 26 grams each were separated from the recovered charas. The samples were sealed in the parcels with seal impression “A”. The bulk charas was also sealed in a parcel with twelve seals of seal impression “A”. NCB forms, in triplicate, were filled-in in accordance with law. Statements of PW7 HC Dev Raj and PW9 Constable Latif Mohammad have been duly corroborated by PW13 SHO R.P. Jaswal. There is no illegality or infirmity the manner in which the search and seizure of the contraband was carried out by the police. 23. NCB forms, in triplicate, were filled-in in accordance with law. Statements of PW7 HC Dev Raj and PW9 Constable Latif Mohammad have been duly corroborated by PW13 SHO R.P. Jaswal. There is no illegality or infirmity the manner in which the search and seizure of the contraband was carried out by the police. 23. PW5 HC Kailash Chand deposed that on 12.1.2009, PW13 SHO R.P. Jaswal deposited with him one big parcel sealed with twelve seals of seal impression “A” containing 28.248 grams charas recovered from the accused Chain Lal along with sample seal, samples parcels, each containing 26 grams charas sealed with seal impression “A”, NCB form in triplicate and recovery memo. On the same date and time, he also deposited with him three big parcels containing charas, which was recovered from the other three accused, samples of the contraband, NCB forms and sample seals. According to him, on 13.1.2009, one sample parcel separated from the charas recovered from each accused, i.e. four sample parcels along with NCB form in triplicate, recovery memo, sample seal qua each accused were sent to FSL through HHC PW1 Chatter Singh vide RC No.12/09, Ext.PW5/B. The case property was deposited by PW13 SHO R.P. Jaswal with PW5 HC Kailash Chand in a safe and sealed condition. PW5 HC Kailash Chand also proved abstract of malkhana register, Ext.PW5/A. It has also come in the statement of PW5 HC Kailash Chand that PW1 Constable Chatter Singh after depositing the parcels at FSL, Junga returned RC to him. PW1 HHC Chatter Singh has corroborated the version of PW5 HC Kailash Chand on all material particulars that on 13.1.2009 MHC Kailash Chand handed over to him four sample parcels along with sample seal and concerned papers vide RC No.12/09 for being deposited at FSL, Junga and thereafter, he deposited the same there and on return, he handed over the RC to MHC Kailash Chand. According to him, so long the case property remained in his possession, it was neither tampered with nor did he allow anybody to do any tampering. 24. The bulk charas marked as “A”, “B”, “C” and “D” was also sent for chemical analysis to the FSL Junga. According to him, so long the case property remained in his possession, it was neither tampered with nor did he allow anybody to do any tampering. 24. The bulk charas marked as “A”, “B”, “C” and “D” was also sent for chemical analysis to the FSL Junga. PW10 HC Pawan Kumar, deposed that PW11 Diwan Chand, had deposited with him four big parcels duly sealed with 12 seals of seal impression “A”, eight sample parcels each sealed with three seals of seal impression “A” on 18.8.2009 and on the same day, he sent the case property of case Nos.13/09, 134/09 and 264/09 to FSL Junga vide docket, Ext.PW10/A through PW7 HC Dev Raj, but he received a telephonic call from him that separate docket and RC of each sample along with samples, which had already been examined at FSL, were required. Thereafter, he sent the balance parcels of sample of case No.13/09 along with documents to the FSL, Junga through Constable No.426 Pawan Singh vide R.C., Ext.PW10/C. According to him, the case property was not tampered with so long it remained in his possession. PW11 HC Diwan Chand has also corroborated version of PW10 HC Pawan Kumar qua deposit of case property with him. PW7 HC Dev Raj has also corroborated the version of PW10 Pawan Kumar on all material particulars that on 18.8.2009 MHC of Police Station, Sadar Chamba had handed over the case property of case Nos. 264/09, 13/09 and 134/09 for being deposited at FSL, Junga vide RC No.153/09 along with relevant documents, but he could not deliver the same on 19.8.2009 due to objections raised by the scientists at FSL, Junga that separate documents were required. He informed the MHC, Police Station, Chamba and he deposited the case property with MHC Chhota Shimla. His version to this effect is supported by PW14 HC Yog Raj. He testified that on 19.8.2009 PW7 HC Dev Raj deposited with him case property at Police Station Chotta Shimla. He made an entry in the daily dairy to this effect vide Ext.PW14/A. On 20.8.2009, he handed over the case property to PW7 HC Dev Raj and entry to this effect was made in the daily dairy, vide Ext.PW14/B. He also categorically deposed that so long the case property remained in his possession, it was not tampered with. He made an entry in the daily dairy to this effect vide Ext.PW14/A. On 20.8.2009, he handed over the case property to PW7 HC Dev Raj and entry to this effect was made in the daily dairy, vide Ext.PW14/B. He also categorically deposed that so long the case property remained in his possession, it was not tampered with. PW8 Pawan Singh Constable No.426 also deposed that on 19.8.2009 MHC Pawan Kumar handed over to him four sample parcels sealed with three seals of seal impression “A” for being taken to FSL Junga vide RC No.154/09. He deposited the parcels with HC Dev Raj at FSL Junga along with RC and documents. 25. It is also evident from the chemical examiner’s report, Ext.PX and PY that the seals were intact at the time of chemical examination of the contraband. The samples were received through Constable No.426 Pawan Singh and HC Dev Raj. 26. According to learned Advocates appearing for the accused, some seals on sample parcels were broken. However, fact of the matter is that sample parcels and bulk charas recovered from each accused were received at FSL Junga duly sealed with seal impression “A” in safe condition. The seals were found intact and the same were tallied with the facsimile of the seal affixed on NCB form. 27. Learned Advocates appearing for the accused have vehemently argued that the police has not joined the independent witnesses at the time of search and seizure of the contraband. They have relied upon statements of DW1 Salimo and DW2 Gajinder Singh. 28. The accused were apprehended on the intervening night of 11/12th January 2009 near Ardi Modh at about 1.30 A.M.. It was an isolated place. It was dark. It has come in the statement of PW13 SHO R.P. Jaswal that since the spot was an isolated place, independent witnesses could not be associated. According to site map, Ext.PW13/B, there was no locality in the vicinity where the accused were apprehended. Statements of the police officials are consistent, credible and inspire confidence. They had no animosity with the accused. They cannot be stated to be interested witnesses, though according to DW1 Salimo and DW2 Gajinder Singh, shops and houses were situated adjacent the place where the accused were apprehended. However, their version is not supported by the site map, Ext.PW13/B. 29. Statements of the police officials are consistent, credible and inspire confidence. They had no animosity with the accused. They cannot be stated to be interested witnesses, though according to DW1 Salimo and DW2 Gajinder Singh, shops and houses were situated adjacent the place where the accused were apprehended. However, their version is not supported by the site map, Ext.PW13/B. 29. Learned Advocates appearing for the accused also contended that there was violation of Section 55 of the Act. Since PW13 Investigating Officer, R.P. Jaswal was SHO/Inspector at the relevant time, he was not required to reseal the contraband. They have also argued that there is variation in the weight of bulk charas recovered from the accused. There was bound to be some variance in the bulk charas at the time of seizure and at the time of examination of the contraband by the chemical examiner at FSL, Junga with the passage of time because instruments used for weighing the contraband at FSL Junga are more sophisticated vis-a-vis the weights and scales carried by the Investigating Officer in his kit. Learned trial court has rightly convicted and sentenced the accused for the offences punishable under Sections 20 and 29 of the Act. We find no reason to interfere with the well reasoned judgment rendered by the learned trial court. 30. Accordingly, in view of the observations and analysis, made hereinabove, there is no merit in the appeals and the same are dismissed. Pending application(s), if any, also stands disposed of. No costs.