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2014 DIGILAW 800 (HP)

Hari Lal v. State of H. P.

2014-06-26

RAJIV SHARMA, SURESHWAR THAKUR

body2014
JUDGMENT Sureshwar Thakur, Judge The instant appeal is directed against the judgment of the learned Presiding Officer, Fast Rack Court, Mandi in Sessions trial No. 15 of 2008, whereby, the learned trial Court convicted the appellant/accused for his having allegedly committed an offence punishable under Section 20(b) (iii)(c) of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the ND&PS Act) 2. Brief facts of the case which are necessary to determine the appeal are that on 2.3.2008, S.I. Dharam Singh, on the diretions of the SHO, Police Station, Gohar, along with ASI Shakti Chand, H.C. Khem Chand, C. Chuni Lal, HHC Tulsi Ram and C. Virender Kumar laid a Naka for detection of cannabis, on, the National Highway, at, inspected the vehicles plying on the road, as also, the pedestrians to determine and ascertain, as, to whether the cannabis was carried, in, vehicles or by pedestrians. At about 5.30 P.M. a person came from the dam side. He on seeing the naka party were taken aback/retraced his steps and started fleeing. On chase by the police party, he was nabbed. On inquiry, the accused disclosed, his, name to be Hari Ram son of Shri Kewal Singh, resident of Village Tandhi, Post Office Manglor, District Kullu, H.P. SI Dharam Singh suspected, that, the accused was having some contraband in his possession and thereafter, he sent H.C. Khem Chand for bringing local/independent witnesses. One local witness, Shri Balak Ram was brought on the spot and thereafter SI Dharam Singh gave his personal search to the accused in the presence of witnesses. The accused was apprised in writing about his right of search, in, the presence of a Magistrate or gazetted officer. A memo comprising the said intimation was given to the accused, was prepared by SI Dharam Singh and ASI Shakti Chand, Balak Ram and the accused put their signatures thereon. On the accused consenting to give his personal search to the police, SI Dharam Singh carried out the personal search of the accused, in, the presence of ASI Shakti Chand and Balak Ram. During the personal search of the accused, the accused was found to have wrapped around his waist a white colour polythene material like belt beneath the coat, sweater and T-shirt and upon cutting the polythene packet(cello tape) with blade, it, was found to be cannabis in the shape of sticks. During the personal search of the accused, the accused was found to have wrapped around his waist a white colour polythene material like belt beneath the coat, sweater and T-shirt and upon cutting the polythene packet(cello tape) with blade, it, was found to be cannabis in the shape of sticks. C. Virender Kumar was sent for fetching the weights and scales and thereafter the cannabis was mixed and on weighment, it was found to be 3 KG and 500 grams. Out of the chemical analysis, which were packed in cloth parcels and were sealed with seal impression “D”, at, three places each. The residue cannabis along with cover made with cello tape was put into the cloth parcel and was sealed with seal impression ‘D’, at, six places. The specimen of seal impression ‘D’ were separately drawn on a piece of cloth over which witnesses Balak Ram, ASI Shakt Chand and accused appended their respective signatures. Sample seal was handed over to ASI Shakti Chand after its use. NCB forms in triplicate were filled, in, by SI Dharam Singh on the spot. Subsequently, SI Dharam Singh took into possession all the sample parcels and the parcel of residue charas under memo which was signatured by witnesses Balak Ram, H.C. Khem Chand and the accused respectively. Rukka was prepared on the spot by SI Dharm Singh, which was sent to the police station, through, C. Chuni Lal and on, its, strength FIR was registered in the police station, Gohar. SI Dharam Singh prepared the site plan, as also, recorded the statements of the witnesses. Special report was forwarded on 4.3.2008, to, the Superintendent of Police, Mandi, through, lady constable Neelam Kumari and she handed over the same in the office of S.P., Mandi at about 10.15 A.M. over which an endorsement to this effect was made. On 2.3.2008, SI Dharam Singh deposited the sample parcels, parcel of residue charas and other related documents with SHO/Inspector Jagdish Chand, for resealing. Thereafter Inspector/SHO Jagdish Chand had resealed three parcels with his own seal impression ‘T’. The sample parcels were re-sealed with seal impression ‘T’, at, two places each and the main parcel was sealed with seal impression ‘T’ at four places. An entry was made by Inspector specimen of seal impression ‘T’ was also separately drawn on a piece of cloth. Thereafter Inspector/SHO Jagdish Chand had resealed three parcels with his own seal impression ‘T’. The sample parcels were re-sealed with seal impression ‘T’, at, two places each and the main parcel was sealed with seal impression ‘T’ at four places. An entry was made by Inspector specimen of seal impression ‘T’ was also separately drawn on a piece of cloth. After resealing the case property, Inspector Jagdish Chand deposited the same with MHC Inder Dev, who made an entry, in, the Malkhana Register. On 4.3.2008, MHC Inder Dev had forwarded one of the sample parcel of charas along with sample seals ‘D” and “T”, NCB form in triplicate, copy of FIR, seizure memo and other related documents to FSL, Junga through HHC Pardeep Kumar vide R/C No.160 of 2008. The aforesaid constable deposited case property with FSL Junga on 5.3.2008 and handed over the receipt of deposite of case property in the office of FSL, Junga, to, MHC Inder Dev, on, his return to the police station. 3. On conclusion of the investigation, into the offences, allegedly committed by the accused, report under Section 173 of the Code of Criminal Procedure was prepared and filed in the Court. 4. Accused was charged for having committed an offence punishable under Section 20 (b) (ii) (c) of the ND & PS Act by the learned trial Court. In proof of the prosecution case, the prosecution examined 12 witnesses. On conclusion of recording of the prosecution evidence, the statement of the accused under Section 313 of the Code of Criminal Procedure was recorded by the Court, in which the accused claimed false implication. 5. The learned trial Court on appreciation of the evidence on record, returned findings of conviction in favour of the accused. 6. The accused/appellant, is, aggrieved by the judgment of conviction recorded by the learned Trial Court. The learned counsel appearing for the accused/appellant, has, concertedly and vigorously Court below are not based on a proper appreciation of the evidence on record, rather, they are sequeled by gross mis-appreciation of the material evidence on record. Hence, he contends that the findings of conviction, be, reversed by this Court in the exercise of its appellate jurisdiction and be replaced by findings of acquittal. Hence, he contends that the findings of conviction, be, reversed by this Court in the exercise of its appellate jurisdiction and be replaced by findings of acquittal. On the other hand, the learned Additional Advocate General has with considerable force and vigour contended that the findings of conviction recorded by the Court below are based on a mature and balanced appreciation of the evidence on record and do not necessitate interference, rather, merit vindication. 7. This Court with the able assistance of the learned counsel on either side, has with studied care and incision, evaluated the entire evidence on record. 8. The prosecution story, is, encapsulated in a firm, forthright and unequivocal deposition, of, SI Dharam Singh, PW-12, who, in, categorical and unequivocal terms, has, corroborated the genesis of the prosecution story, referred to hereinabove. During, his cross-examination by the learned defence counsel, he, remained unscathed. His having remained unscathed, during the ordeal of his inexorable cross-examination render his deposition, to, be both credible, as well as inspiring. His deposition has come to be corroborated by the deposition of PW-1 ASI Shakti Chand. A combined reading of the depositions of both PW-1 ASI Shakti Chand and SI Dharam Singh, PW-12, do, not, on their incisive and close reading, either unearth or unravel, and the existence of any magnified or accentuated contradiction either inter se or intra se, which would render their testimonies, to, be lacking in to be construed to be credible qua the facts as deposed by each of them, in, respect of the manner and place in which the contraband was recovered from the conscious and exclusive possession of the accused. Moreover, the depositions of both the aforesaid PWs i.e. PW-12 SI Dharam Singh and PW-1 ASI Shakti Chand, have come to be rendered fortifying corroboration by the deposition of PW-3 C. Virender Kumar, who has rendered his deposition, in, harmony with the deposition of PW-1 Shakti Chand and PW-12 SI Dharam Singh. He, too, in his deposition has omitted to communicate either inter se or intra se contradictions with either his own deposition in examination-in-chief, or, with the depositions of PW-1 ASI Shakti Chand and PW-12 SI Dharam Singh. He, too, in his deposition has omitted to communicate either inter se or intra se contradictions with either his own deposition in examination-in-chief, or, with the depositions of PW-1 ASI Shakti Chand and PW-12 SI Dharam Singh. The further fact of PW-4 C. Chuni Lal, too, deposing, in, corroboration with the testimonies of other officials witnesses, to, which advertence has been made hereinabove, construed, in, conjunction with the fact of independent witness, PW-11 Balak Ram, having lent, a, complete and fortifying corroboration, to, the testimony of the official witnesses, paves way, for no conclusion, other than, of the prosecution having adduced credible and cogent evidence, in, respect of the genesis of the prosecution story, as, referred to hereinabove. The Investigation Officer has, in associating the independent witness, PW11 Balak Ram, exercised circumspect caution, to, ensure the success of the prosecution story. Besides, his having associated an independent person, who withstood, any attempt or effort which may have been made by the accused to wean him, rather, his having even withstood the rigors of a toiling cross-examination, hence, come to afford succor and strength to the genesis of the prosecution story, is, Investigating Officer, in, obviating the independent witness wilting at the crucial stage. The entire apposite evidence on record from to the stage of commencement of the proceedings, till, the consummate link, comprised, in, the rendition of an opinion by the FSL, Junga on the specimen parcels sent for its analysis, portrays evidence of un-broken and un-severed links, in, the entire chain of the circumstances. Obviously, then the evidence against the accused, is, neither discrepant nor inconsistent, rather, as portrayed by the report of FSL comprised in Ex.PW9/B, of, the cloth parcel/exhibits, being sealed with three seals of impressions ‘T’ and ‘D’ each and each of which seals were intact and tallied with the seal impression sent by the SHO, P.S. Gohar, convincingly and resoundingly, spurs the conclusion, that, the case property, as, was sealed at the stage of its recovery, from the alleged conscious and exclusive possession of the accused, in, the presence of the independent witnesses, at, the site of occurrence, was the very same as was subsequently resealed, in, the police station by the SHO/Inspector Jagdish Chand. Besides with a recital on Ex.PW9/B of its bearing, also, the seal impression ‘T’ embossed, on, a piece of cloth, on, its resealing by SHO, P.S. Gohar and such seals being noticed, to, be intact and on comparison with the sample seal impression found to be compatible, also, to the considered mind, of this Court, repulses, any iota of skepticism which may seep, into, the prosecution case qua the fact of sample seals, as, were sent for examination to FSL, Junga, being not the one as were initially, used to seal the recovered contraband, as also, being not the sample parcels, which was recovered from the excusive and conscious possession of the accused. 9. Lastly, the counsel for the accused/appellant has endeavoured to concert before this Court that the entire quantity of the bulk charas as was recovered from the conscious and exclusive possession of the accused weighing three kilograms and five hundred grams, was not sent for analysis to FSL, Junga, as evident from the opinion, by the FSL comprised, in, its report revealing the fact of rendition of an opinion on two samples of 25 grams each. On the strength thereto, an effort has been made by the counsel for the appellant, to, construct an argument that, since the entire bulk remained unexamined by the FSL, Junga, rather, only 50 grams of charas was examined, hence, the accused, is, liable to be convicted and sentenced, only, for his possessing a quantity of charas i.e. 50 grams, which, was chemically examined by the FSL, Junga. In other words, he, contends that, hence, when the remaining bulk remained unexamined, consequently, no, opinion had been rendered by the FSL, Junga, qua, its contents and, as such, the remaining quantity, cannot, be construed to be charas, nor also, then, it can be construed, that the accused, is, in exclusive and conscious possession, of, 3 kg and 450 grams of charas. The said argument has, no, foundation in the face of PW-1 ASI Sakti Chand having deposed, in, his examination-in-chief, that, the cannabis as recovered, in, the manner as deposed, by, the official witnesses and corroborated by PW-11 Balak Ram, the independent witness, was homogeneously mixed and then weighed. The said argument has, no, foundation in the face of PW-1 ASI Sakti Chand having deposed, in, his examination-in-chief, that, the cannabis as recovered, in, the manner as deposed, by, the official witnesses and corroborated by PW-11 Balak Ram, the independent witness, was homogeneously mixed and then weighed. The said deposition of the official witnesses, is, communicative of the fact that the police officials had not extracted a bit of cannabis from any part of the bulk, rather, the sample was extracted from the bulk, only after the entire bulk as recovered from the exclusive and conscious possession, was of 25 grams each were separated. Conclusive evidence of extraction or separation of two samples of 25 grams each, from, the homogeneously mixed bulk, repulses, the contention of the learned counsel for the appellant that, hence, the bulk from which two samples of 25 grams each were separate was not charas, as, it remained to be unexamined by the FSL, Junga. The factum of the entire bulk having been homogeneously mixed for reiteration, is, an exercise adopted by a very circumspect Investigating Officer, to, obviate as well, as, to falsify, an, argument that samples on which the opinion was rendered by the FSL, Junga, are, alone to be construed to be charas and the remaining bulk, is, not to be construed to be charas on the score of, it, purportedly being not homogeneously mixed. However, when it came to be for the reasons aforesaid, homogeneously mixed and extraction of two samples of 25 grams each, was, made from the homogeneous mixture, it, invites an inevitable conclusion that the remaining bulk of homogeneous mixture, too, hence, is to be construed as charas. The deposition of PW-12 SI Dharam Singh, as, corroborated by other official witnesses and PW-11 Balak Ram, has, remained uncontroverted, by, any suggestion to this witness, by, the learned defence counsel intending to portray, that, the deposition, in, their examinations-in-chief qua the entire bulk having been homogeneously mixed, is, false. The absence of the cross-examination of the official witnesses and Balak Ram, hence, prompts this Court, to, conclude that the defence acquiesced, to, the fact of entire bulk having been homogeneously mixed. The absence of the cross-examination of the official witnesses and Balak Ram, hence, prompts this Court, to, conclude that the defence acquiesced, to, the fact of entire bulk having been homogeneously mixed. In aftermath, for reiteration, it shall be consequently held that the separated samples were extracted from homogenous mixture of accused/appellant, at the appellate stage, when there is absence of foundation for his argument comprised in an apposite suggestion, to, the prosecution witnesses, in, their cross-examination for mustering sinew to his contention, that, hence, it is either credible or sustainable. 10. In aftermath, this Court concludes that there is convincing, forceful and in-discrepant evidence on record comprised in credible deposition of the official witnesses fortifyingly corroborated by the deposition of impartisan and uninterested independent witness, PW-11 Balak Ram and as such the findings of conviction recorded by the learned trial Court below are well merited and do not deserve interference. Accordingly, the appeal is dismissed.