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Himachal Pradesh High Court · body

2014 DIGILAW 867 (HP)

Panna Lal v. State of H. P.

2014-07-09

RAJIV SHARMA, SURESHWAR THAKUR

body2014
Judgment : Sureshwar Thakur, Judge 1. All these appeals are being disposed of by a common judgement as they all arise, from a common judgement rendered by the learned Special Judge, Kullu, H.P. in Sessions Case No. 32 of 2010, whereby, the learned trial Court convicted the accused to undergo rigorous imprisonment for four years and to pay a fine of Rs.40,000/- for the commission of offence under Section 20 of the Narcotics Drugs and Psychotropic Substances Act, 1985. 2. The prosecution story, is, that on 26.5.2010 at 11.00 a.m the police officials, namely, HC Chaman Lal alongwith Const. Subhash, Const. Pushap Raj and Const. Ved Vyas of Police Station, Bhunder, were on patrol duty at Chheunr Badogi. Further, at about 12.30 p.m, the police party, while being present at Chheunr Badogi road, noticed the accused coming from the village path. He on seeing the police party got perplexed and attempted to flee from the spot. On suspicion of the police party having been aroused he was chased. On chase he was apprehended. The place from where he was nabbed was a secluded place and no one traversed through the path at that time. Subsequently, the I.O. joined constable Pushap Raj and PW-6 Subhash as witnesses and name and address of the accused was ascertained. The accused was apprised about his legal right to be searched either in the presence of a gazetted officer or a Magistrate, under memo Ext.PW-6/A. The accused consented to give his search to the police present at the spot. Thereafter I.O. gave his personal search to the accused vide memo Ext.PW-6/B. The accused was searched and bag was found concealed by the accused below his left arm pit under the coat worn by him. On opening the bag charas in the shape of balls was found wrapped in transparent polythene wrappers. The charas, so recovered, was weighed on electronic weighing scale and it was found to be 1.200 k.g. in weight. The charas was repacked in the same manner and kept in cloth parcel and sealed with six seals of seal-H. The I.O. also filled in NCB form in triplicate, one of which is Ext.PW-1/C and drew specimen impression of seal H on cloth pieces, one of which was proved as Ex.PW-6/C and seal after its use was handed over to PW-6. Thereafter, the case property was taken into possession vide memo Ext.PW-6/D and one copy of the same was supplied to the accused. Thereafter, I.O. prepared Ruqa Ext.PW-3/A and the same was handed over to PW-6 with directions to deliver the same at Police Station, Bhunter. The officiating SHO ASI Jaspal Singh, after receipt of Ruqa Ext.PW-3/A, registered F.I.R. Ext.PW-3/B and made endorsement Ext.PW-3/C on the Ruqa. The case file was handed over to Const. Subhash Chand with the direction to carry the same to the I.O. The accused was arrested vide memo Ext.PW-7/B and information qua his arrest was given to his nephew as desired by him. The I.O. also prepared site plan Ext.PW-7/A and recorded statements of witnesses. The personal search of the accused was also taken vide memo Ext.PW-6/D. On return to the Police Station I.O. produced the accused and the case property before officiating SHO PW-3, who resealed the parcel Ex.P-1 with six impressions of letter T and also filled in relevant columns of NCB form and put facsimile of seal T on NCB form. He also drew sample seal of T, one of which is proved as Ext.PW-3/D and thereafter the case property alongwith NCB form sample seals H and T were deposited with MHC. 3. The I.O. prepared special report on 27.5.2010 Ext.PW-5/A. It was produced before Dy. S.P. who made endorsement on it and handed over the same to HC Nirat Singh. PW-1 MHC Om Prakash handed over parcel Ex.P-1 alongwith relevant documents with PW-4 HHC Laxman Dass, who delivered the case property at FSL Junga. PW-1 also filled in column No.12 of NCB form before sending the case property. On return PW-4 deposited the RC with receipt with MHC. After receipt of the report of FSL Ext.PW-2/B it was revealed that the contraband recovered from the accused was of charas and, as such, challan under Section 173 of the Cr.P.C. was prepared and filed in the Court. 4. The trial court charged the accused for his having committed offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, to which he pleaded not guilty and claimed trial. In order to prove its case, the prosecution examined as many as 7 witnesses. On closure of the prosecution evidence, the statement of the accused under Section 313 Cr.P.C. was recorded in which he pleaded innocence and claimed trial. In order to prove its case, the prosecution examined as many as 7 witnesses. On closure of the prosecution evidence, the statement of the accused under Section 313 Cr.P.C. was recorded in which he pleaded innocence and claimed trial. On closure of proceedings under Section 313 Cr.P.C the accused person was given an opportunity to adduce evidence, in, defence, and he chose to adduce evidence in defence. 4. The first witness, who stepped into the witness box to prove the prosecution case, is, PW-1 HC. Om Prakash. He deposes that on 26.5.2010 at 5.20 p.m ASI Jaspal Singh deposited with him one cloth parcel stated to be containing one bag of light yellow colour in which there was 1 kg. 200 gram charas in the shape of balls, sealed with six seals of H and resealed with six seals of T alongwith sample seals H and T, NCB forms in triplicate and other documents which he entered in Malkhana register at Sr. No. 98. On 27.5.2010, he handed over the cloth parcel containing 1200 grams charas alongwith NCB forms in triplicate, sample seals of H and T and other documents to constable Lakshman Dass vide RC 50/2010 with a direction to deposit the same in FSL Junga for chemical analysis. He deposes that before sending the same to FSL Junga he had filled in column No.12 of the NCB form. He also deposes that so long the case property remained with him the same remained untamperred. He deposed that Ex.P1 was the same parcel which was deposited with him and sent to FSL, Junga, through, constable Lakshman Dass. He also proves the abstract of Register Malkhana Ext.PW-1/D and copy of RC Ex.PW-1/E. The receipt of RC has been proved to be comprised in Ext.PW-1/F. PW-2 SI Narain Singh deposes that the case property alongwith relevant documents and docket was sent to FSL Junga under letter Ext.PW-2/A. He deposes that on receipt of Chemical Examiner Report Ext.PW-2/B he prepared the challan and filed it in the Court. PW-3 ASI Jaspal Singh deposes that, on, 26.5.2010 he was officiating as SHO in Police Station Bhuntar. He further deposes that Const. Subhash Chand produced Ruqa Ext.PW-3/A sent by HC Chaman Lal I.O. before him on the basis of which he registered F.I.R Ext.PW-3/B and made endorsement Ex.PW-3/C on the Ruqa. PW-3 ASI Jaspal Singh deposes that, on, 26.5.2010 he was officiating as SHO in Police Station Bhuntar. He further deposes that Const. Subhash Chand produced Ruqa Ext.PW-3/A sent by HC Chaman Lal I.O. before him on the basis of which he registered F.I.R Ext.PW-3/B and made endorsement Ex.PW-3/C on the Ruqa. Subsequently, the case file was prepared and handed over to constable Subhash Chand with a direction to hand it over to I.O. Chaman Lal. He deposes that H.C. Chaman Lal produced the case property i.e. one parcel Ext.P-1 bearing six seals of H alongwith sample seal, NCB form and copy of F.I.R and recovery memo. He deposes that he resealed the parcel with six seals of T through sample of seal T on cloth pieces one of which is Ext.PW-3/D. He also filled in column No. 9 to 11 of NCB form and put facsimile of seal T on the NCB form and thereafter he deposed that case property alongwith other documents were deposited with MHC qua which entry was made in daily diary register copy of which is Ext.PW-1/B. Ex.P-1 is the same parcel which was resealed by him. PW-4 HHC Laxman Dass deposes that MHC Om Prakash handed over one parcel Ext.P-1, which was sealed with six seals of letter H and resealed with six seals of letter T, to him, alongwith sample seals of H and T, Form NCB in triplicate and other documents with direction to deposit the same at FSL Junga. He deposited the said articles at FSL, Junga on 28.5.2011 and on his return RC Ex.PW-1/E alongwith receipt Ex.PW-1/F of FSL, Junga was deposited with MHC. He also deposes, that, so long the case property remained with him the same remained in an untampered condition. PW-5 HC Nirat Singh deposes that, on, 27.5.2010 Dy. S.P. Shiv Kumar Choudhary handed over special report Ext.PW-5/A to him after making his endorsement, which was entered in the relevant register at Sr. No. 46 and the abstract of the register, is, Ext.PW-5/B. The endorsement of the Dy.S.P. is Ext.PW-5/C. 6. Both PW-6 Const. Subhash and PW-7 H.C. Chaman Lal are official witnesses. They have deposed in unison and in harmony qua the genesis of the prosecution story as has been enunciated hereinabove. They have formidably and unequivocally deposed qua the fact of theirs having waited for 20 minutes for the joining of independent witness. Both PW-6 Const. Subhash and PW-7 H.C. Chaman Lal are official witnesses. They have deposed in unison and in harmony qua the genesis of the prosecution story as has been enunciated hereinabove. They have formidably and unequivocally deposed qua the fact of theirs having waited for 20 minutes for the joining of independent witness. However, since no independent witness arrived at the spot, hence, they proceeded, to, in the absence of joining of any independent witness, to carry out the search of the person of the accused after his having consented, to, his being searched by the police party, which consent of the accused is comprised in Ext.PW-6/A. During the course of cross-examination of these witnesses nothing has been elicited from them so as to underscore the fact of the accused having come to be subjected to duress by any of the police officials, preceding, his having consented to his personal search by the police officials nor is there any suggestion put to any of the official witness, devolving upon the fact of theirs having intentional or deliberately omitted to associate independent witness or portraying that they had omitted to make concerted effort to solicit the participation of independent witness in the proceedings relating to search of the accused, in, sequel whereof recovery of contraband was effected from his person. Effect of the aforesaid omission surges forth the conclusion that the proceedings relating to recovery of contraband from the person of the accused were conducted in a fair, transparent and impartisan manner, besides the proceedings do not reek of any suspicion. 7. The deposition of the official witnesses, in case, inspire confidence and are trustworthy as well are credible, their testimonies, hence, necessitate theirs being revered and vindicated. Even, in the absence of association of independent witness, whose non joining is not always fatal to the prosecution case, in the event of the testimonies of the official witnesses inspiring confidence nor would, hence, the non joining of independent witnesses detract from the efficacy or the veracity of the genesis of the prosecution case. Consequently, when this Court concludes that the testimonies of PW-6 and PW-7 are inspiring, a concomitant inference of theirs being credible arises or sprouts on the score of a tinge of naturalness imbuing their testimonies. Consequently, when this Court concludes that the testimonies of PW-6 and PW-7 are inspiring, a concomitant inference of theirs being credible arises or sprouts on the score of a tinge of naturalness imbuing their testimonies. Besides, when their depositions are not afflicted with the vice or taint of intrase contradictions or interse contradictions whose existence would otherwise have blemished their testimonies with the vice of prevarication. As a sequel, nonexistence of such contradictions, hence, renders their testimonies to be construable to be bespeaking or articulating the truth qua the occurrence. 8. The learned counsel for the accused canvasses before this Court that Ext.PW-6/A, which is the consent accorded by the accused to his being searched by the police, does not carry any probative value, as it, is, not couched in the appropriate phraseology, in, as much as, it omits to apprise the person proposed to be searched of his legal right to be searched before a Magistrate or a Gazetted Officer, especially given the fact that the recovery of contraband was effected under his left arm pit beneath the coat. Consequently, it is urged when the enjoined mandatory provisions of Section 50 of the NDPS Act, 1985, entailed upon the I.O, the duty to apprise the accused of his legal right, to be searched, before a Gazetted Officer or the Magistrate, whereas, no, such communication or intimation apprising him of his legal right to be searched before the aforesaid existing anywhere, renders, the proceedings carried out in consequence to Ext.PW-6/A to be vitiated as well as flawed. The argument as posed before this Court by the learned counsel for the appellant, is, rudderless. A careful discerning reading of the contents of Ext.PW-6/A, duly signatured by the accused appellant, rather, does warrant a conclusion that he had been apprised of his right to be searched before a Gazetted Officer or a Magistrate, which intimation, is, obviously construable to be bearing the connotation of his having a legal right to be searched before a Gazetted Officer or a Magistrate, hence, the intimation to him. As such, even in the absence of the word ‘legal’ not occurring before the word ‘right’ in Ext.PW-6/A, it, cannot be hence construed that there was, no, intimation, of, right vested, in, the accused-appellant to be searched before a Magistrate or a Gazetted Officer. As such, even in the absence of the word ‘legal’ not occurring before the word ‘right’ in Ext.PW-6/A, it, cannot be hence construed that there was, no, intimation, of, right vested, in, the accused-appellant to be searched before a Magistrate or a Gazetted Officer. Consequently, it is to be held that, strict and substantial compliance with the mandatory statutory provisions of Section 50 of the Act was begotten by the Investigating Officer before proceeding to carry out the search of his person. In sequel, when, no, blatant, flagrant or noticeable transgression of the mandatory provisions of Section 50 of the Act is apparent, as such, the search on the person of the accused after his having consented to being searched legalizes as well as legitimizes, the manner of recovery of contraband from the person of the accused. 9. Given the proven consent of the accused-appellant in Memo Ext.PW-6/A hence, no necessity remained enjoined upon the Investigating Officer to proceed to take the person of the accused to the nearest Gazetted Officer or the Magistrate for his being searched, as his consent precludes compliance with the enjoined statutory obligation cast, in, Section 50 sub section (1), upon the Investigating Officer, to, take the accused appellant, for his being searched before the nearest Gazetted Officer or Magistrate. According of consent, by the accused, comprised, in, Ext.PW-6/A deprives him to contend that even dehors the exercise of option by him of his being searched by the Investigating Officer, he, still continued to have a subsisting and continuing legal right, of, his being searched before the Gazetted Officer or the Magistrate. Rather the proven factum of Ext.PW-6/A, also, pronounces upon the fact that when he had consented to be searched by the Investigating Officer and that, too, when there is no evidence existing qua exercise of any duress or compulsion upon him by the police official at the stage of his conveying his consent comprised in Ext.PW-6/A, also disobliged or did not lay any legal obligation upon the Investigating Officer to hence, solicit or concert to requisition the presence of independent witness. Consequently, when the independent witness remained not joined their non joining does not vest the prosecution case with the hue of fatality, as, the factum of consent of the accused portrayed in Ext.PW-6/A robs the genesis of the prosecution case of any element or trace, of, fatality. Consequently, when the independent witness remained not joined their non joining does not vest the prosecution case with the hue of fatality, as, the factum of consent of the accused portrayed in Ext.PW-6/A robs the genesis of the prosecution case of any element or trace, of, fatality. The learned trial Court below while applying the ratio of the Judgement reported in Madan Lal and another vs. State of H.P (2003) 7 SCC 465, wherein, it, was mandated that for computing the weight of the seized charas for the purpose of imposition of sentence, weight of the resinous substance, alone, is to be taken into reckoning, hence, when the weight of the resinous substance, in, the total bulk of charas seized from the exclusive and conscious possession of the accused was, only, 420 grams it hence proceeded to convict and to sentence him for possessing a quantity lesser than the commercial quantity. However, the weight of the bulk of charas recovered from the accused was 1.200 kilogram. The judgement of the learned trial Court, in, convicting and sentencing the accused for his possessing less than the commercial quantity of charas, on, the score of it having excluded the unresinous substance, is, anvilled upon a judgement rendered in Dharam Pal Vs. State of H.P. reported in HLJ 2007(2) 827. However, the effect of said judgement pronounced in the year 2007, to, whom reverence was paid by the learned trial Court, in, the year 2012, stood, at the apposite stage of imposition of conviction and sentence upon the accused qua his possessing more than the small or less than commercial quantity of charas, stood whittled down, by the amendment made in the table issued under Sub Clause (VII A) and (XXIII a) of Section 2 of the NDPS Act, in, pursuance to the notification dated 18th November, 2009. The said amendment, clearly pronounces, that, for computing the weight of the seized charas, its, entire mass is to be borne in mind and not the weight of the resinous substance alone, as erroneously done by the learned trial Court. Consequently, the learned trial Court having discarded the said amendment and hence having paid reverence to the judgement rendered, in, Dharam Pal supra has proceeded to commit an illegality, in, convicting and sentencing the accused. Consequently, the learned trial Court having discarded the said amendment and hence having paid reverence to the judgement rendered, in, Dharam Pal supra has proceeded to commit an illegality, in, convicting and sentencing the accused. Therefore, it is held that, in, view of the aforesaid amendment mandating that the entire mass of charas, is, to be taken into reckoning for concluding whether the contraband, as seized from the alleged conscious and exclusive possession of the accused, is, small or commercial quantity in weight and when at the apposite stage of pronouncement of the sentence against the accused the amendment stood ground and was in force. As such, given the weight of the entire mass of the seized charas making it fall within the ambit of commercial quantity, as such, it is held that the accused was to be convicted and sentenced for his possessing commercial quantity of charas. Therefore, it is held that accused be convicted and sentenced for his possessing commercial quantity of charas. He be heard on the quantum of sentence on 23.07.2014 Accordingly, the appeal filed by the appellant-accused bearing Cr. Appeal No. 459 of 2012 is dismissed and the appeals filed by the State bearing No. 473 of 2012 and Cr. Appeal No. 510 of 2012 are allowed.