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Himachal Pradesh High Court · body

2014 DIGILAW 863 (HP)

Man Bahadur v. State of H. P.

2014-07-08

P.S.RANA, SANJAY KAROL

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JUDGMENT : - Sanjay Karol, Judge Appellant-convict Man Bahadur, hereinafter referred to as the accused, has assailed the judgment dated 28.7.2007, passed by Special Judge (Fast Track), Kullu, Himachal Pradesh, in Sessions Trial No.35/2006, titled as State of H.P. v. Man Bahadur, whereby he stands convicted of the offence punishable under the provisions of Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act) and sentenced to undergo rigorous imprisonment for a period of ten years and pay fine of Rs.1,00,000/-, and in default thereof to further undergo rigorous imprisonment for a period of one year. 2. It is the case of prosecution that on 30.4.2006, ASI Lalman (PW-3), who was Incharge of Police Post, Manikaran alongwith HHC Hem Raj (PW-1), HHC Om Prakash (PW-2) and Constable Chaman Lal (not examined) had laid a Naaka at Reuni Nullah. At about 5.30 a.m., accused Man Bahadur, after seeing the police party on the spot, tried to flee away. On suspicion, he was apprehended. He may be carrying a bag, in which it was suspected that he was carrying a contraband substance. HC Hem Raj (PW-1) was sent to search for independent witnesses, but since none was available in the vicinity. After informing the accused of his right of being searched before a Magistrate or a Gazetted Officer, he gave his consent (Ex. PA) of being searched by the police party. After giving their personal search, accused was searched by the police party and from the bag charas like substance was recovered. The same was weighed and found to be 4.400 kgs. Two samples, each weighing 25 grams, were separated and sealed with four seals of impression ‘T’. The remaining bulk parcel was also sealed and the contraband substance seized vide Memo (Ex. PD). Search and seizure operations were carried out in the presence of Hem Raj (PW-1) and Om Parkash (PW-2). NCB form (Ex. PF), in triplicate, was filed up on the spot and Rukka (Ex. PG) sent through Hem Raj to Police Station, Kullu, for registration of the case. ASI Rinchen Gyalsten (PW-6), Police Station, Kullu, registered FIR No.193, dated 30.4.2006 (Ex. PN), under the provisions of Section 20 of the NDPS Act. Accused was arrested on the spot. NCB form (Ex. PF), in triplicate, was filed up on the spot and Rukka (Ex. PG) sent through Hem Raj to Police Station, Kullu, for registration of the case. ASI Rinchen Gyalsten (PW-6), Police Station, Kullu, registered FIR No.193, dated 30.4.2006 (Ex. PN), under the provisions of Section 20 of the NDPS Act. Accused was arrested on the spot. After conducting investigation on the spot, ASI Lalman handed over the case property to SHO Sarwan Kumar (PW-8), who after resealing the same handed it over to MHC Roop Singh (PW-4). Special Report (Ex. PJ) was sent to Dy.SP of the concerned area. Sealed samples were sent for chemical analysis to CTL Kandaghat through Sunder Lal (PW-5). Report (Ex. PR) of the Chemical Examiner was obtained, which revealed the contraband substance to be Charas. On completion of investigation, challan was presented in the Court for trial. 3. Accused was charged for having committed an offence punishable under the provisions of Section 20 of the NDPS Act to which he did not plead guilty and claimed trial. 4. In order to establish its case, prosecution examined as many as nine witnesses and statement of the accused under the provisions of Section 313 of the Code of Criminal Procedure was also recorded, in which he took a defence of false implication. Initially, accused expressed his desire to lead evidence in defence, but lateron chose not to do so and made statement to this effect. 5. Based on the testimonies of witnesses and the material on record, trial Court convicted the accused of an offence punishable under the provisions of Section 20 of the NDPS Act and sentenced him as aforesaid. Hence, the present appeal by the accused. 6. Challenge to the judgment of conviction and sentence is on the grounds, so urged before us, that (i) prosecution has failed to associate any independent witness; (ii) there is interpolation with regard to the number of FIR on the documents prepared on the spot; and (iii) there are contradictions in the testimonies of Hem Raj (PW-1), Om Parkash (PW-2) and Lalman (PW-3), material in nature, with regard to the time of setting up of Naaka; recovery of the contraband substance and arrest of the accused. 7. 7. At the threshold, it is pointed out that keeping in view the ratio of law laid down by this Court in Sunil Kumar vs. State of H.P. Latest HLJ 2010(HP) 207 (which now stands overruled), this Court had directed that the entire bulk parcel be sent to CTL Kandaghat for chemical analysis and report (Ex. AX), evidencing the fact that contraband substance was Charas, was placed on record. This necessitated examination of Inspector Sher Singh (AW-1), Constable Ram Krishan (AW-2) and Constable Sangat Ram (AW-3), by this Court, who have also proved such fact. 8. The question, which needs to be considered, is as to whether findings returned by the Court below with regard to recovery of contraband substance from the conscious possession of the accused are correct, legal and borne out from the record or not. 9. From the conjoint reading of testimonies of PW-1, PW-2 and PW-3, we find that prosecution has been able to establish the guilt of the accused, beyond reasonable doubt. It cannot be said that testimonies of police officials is, in any manner, false or uninspiring in confidence. We find they have deposed truthfully and in a natural way. 10. ASI Lalman (PW-3) states that on 30.4.2006 at about 5.30 a.m., while they had set up a Naaka at Reuni Nullah, they noticed one person fleeing away from the spot. He was chased and overpowered. On questioning, he disclosed his name as Man Bahadur, i.e. the accused. On suspicion that he may be carrying contraband substance, he was informed of his statutory right of being searched in the presence of a Magistrate or a Gazetted Officer. He consented to be searched by the police party present on the spot, vide Memo (Ex. PA). Prior thereto, Hem Raj (PW-1) was sent to search for independent witnesses, but none was available. Thereafter, police party gave search to the accused and prepared Memo (Ex. PB). Then, in the presence of Hem Raj (PW-1) and Om Parkash (PW-2), he searched the bag (green coloured cement bag) carried by the accused, from which 20 polythene envelopes were recovered. They appeared to be containing charas. Upon weighment, they were found to be 4.400 kgs. Two samples, each weighing 25 grams, were drawn and sealed with four seals of impression ‘T’. Remaining bulk parcel was also sealed in the same manner. Contraband substance was seized vide Memo (Ex. They appeared to be containing charas. Upon weighment, they were found to be 4.400 kgs. Two samples, each weighing 25 grams, were drawn and sealed with four seals of impression ‘T’. Remaining bulk parcel was also sealed in the same manner. Contraband substance was seized vide Memo (Ex. PD), which was signed by Hem Raj (PW-1) and Om Parkash (PW-2) and thumb impressed by the accused. NCB form, in triplicate, was filled in on the spot. PW-1 was sent with the Rukka to Police Station Kullu, for registration of the case. Accused was arrested after Hem Raj handed over the case file to him. Case property was handed over to SHO Sarwan Singh (PW-8), who resealed the same with his seal of impression ‘H’. Special report (Ex. PJ) was sent to the Dy.SP. 11. We find the aforesaid testimony to have been materially corroborated by Hem Raj (PW-1) and Om Parkash (PW-2) and proved the case as noticed in paragraph-2 (supra) 12. PW-1 has sufficiently explained that in the wee hours of the morning, no independent witnesses were available. He had gone towards villages Chowki and Katagla. As such, it cannot be said that prosecution case, on account of non-association of independent witnesses, stands falsified in any manner. Recovery was effected in the early hours of the morning at a place where there was neither any traffic nor passersby. In any event, testimonies of police officials fully inspire confidence. 13. We find that there is no material contradiction with regard to the time when accused was apprehended. According to PW-1, memos were prepared at 5.30 a.m. and accused was arrested at 7.30 a.m., whereas according to PW-3, the accused was apprehended at 5.35 a.m. The contradiction, in our considered view, is absolutely minor and cannot be said to have knocked down the prosecution case. PW-3 has categorically deposed that accused was arrested at 7.30 a.m. He has clarified that the time ‘9.30’ was corrected by him, in his hand, as the same was inadvertently written. There is nothing wrong with such statement. 14. We have perused memos (Ex. PA, PB, PD and PE), where in number of the FIR stands corrected by hand. It is not a case of the accused that correction was carried out by a person other than the authors of these documents. There is nothing wrong with such statement. 14. We have perused memos (Ex. PA, PB, PD and PE), where in number of the FIR stands corrected by hand. It is not a case of the accused that correction was carried out by a person other than the authors of these documents. Significantly, number of the FIR, which was initially written as ‘192’ was corrected to read as ‘193’. Figure ‘2’ has been corrected to read as ‘3’. We do not find this fact to be sufficient enough to render the prosecution case to be doubtful. It cannot be said that the documents were interpolated subsequently in order to falsely implicate the accused. Also, there is no evidence to prove that the case was registered prior to registration of the instant FIR. 15. We may also observe that even the witnesses examined by this Court, in unanimity, have established and proved that the contraband substance remained sealed and untampered and upon examination by the laboratory was found to be Charas, a contraband substance. Report (Ex. AX) is clear to this effect. 16. As such, in our considered view, prosecution has been able to establish the guilt of the accused, beyond reasonable doubt, by leading clear, cogent, convincing and reliable piece of evidence. 17. For all the aforesaid reasons, we find no reason to interfere with the well reasoned judgment passed by the trial Court. The Court has fully appreciated the evidence placed on record by the parties. There is no illegality, irregularity, perversity in correct and/or in complete appreciation of the material so placed on record by the parties. Hence, the appeal is dismissed. Appeal stands disposed of, so also pending application(s), if any.