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2014 DIGILAW 962 (HP)

Prem Lal v. State of H. P.

2014-07-23

RAJIV SHARMA, SURESHWAR THAKUR

body2014
JUDGMENT : - Sureshwar Thakur, Judge 1. This appeal is directed against the judgement rendered on 14.09.2009 by the learned Special Judge, Fast Track Court, Chamba, H.P. in Sessions trial No. 13/09, whereby the appellant has been convicted and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. One lac for commission of offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘NDPS Act’) and in default of payment of fine, he has been sentenced to undergo rigorous imprisonment for one year. 2. The prosecution story, in brief, is that on 10.1.2009 at about 6.10 a.m., police party, headed by H.C.Virender Singh was present, at, Chhappa nullah, in connection with patrolling. The accused was allegedly seen carrying a polythene boru on his shoulder, and was coming from Majni village side. On seeing the police party he tried to turn back. This aroused suspicion of the police party. On suspicion the police apprehended the accused. He was informed of his right to be searched before a Magistrate or Gazetted Officer but he consented to be searched by the police. A memo to that effect was prepared. On search of the boru, it was found to contain another polythene bag, having charas, in the shape of sticks. On weighment charas was found to be 6 K.G. Out of the recovered charas, two samples of 25 grams each, were separated, which, were, separately parceled and sealed by affixing three seals of seal ‘D’. The balance charas was also put in that very polythene bag and sealed with five seals of seal ‘D’. NCB form was filled in on the spot in triplicate. The sample seal was also separately taken. A ruqua was scribed at the spot and sent to the police station through SPO Tek Chand. Copy of the ruqua was also sent to SP office, through, constable Parkash Chand. Entire proceedings were carried out in the presence of constable Prakash Chand and constable Mohinder Singh. The accused was arrested and he was communicated about the grounds of arrest. Two sample parcels and one big parcel alongwith NCB form and sample seal, were handed over to SHO Brij Mohan Sharma, who resealed them with seal ‘M’ and reseal memo was prepared to that effect. Thereafter, he deposited the case property with the MHC. The accused was arrested and he was communicated about the grounds of arrest. Two sample parcels and one big parcel alongwith NCB form and sample seal, were handed over to SHO Brij Mohan Sharma, who resealed them with seal ‘M’ and reseal memo was prepared to that effect. Thereafter, he deposited the case property with the MHC. Special report was also sent to the SP, Chamba. One part of the sample, alongwith NCB form and sample seal was sent to the laboratory for chemical examination, and on chemical examination, the sample was found to contain 30.19% w/w resinous substance. After receipt of the report of FSL, 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. 3. 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 9 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 did not choose to adduce evidence in defence. 4. The first witness, who, stepped into the witness box to prove the prosecution case, is, PW-1 constable, Prakash Chand. He deposes that on 10.01.2009, he alongwith Mohinder Singh, Tek Chand, SPO Gopal Singh and HC Varinder Singh proceeded to Nakkabandi at Chhap Nullah, in an Official vehicle and reached there at 6.10 a.m. In the presence of the police party, a person came from Manjli village side and on seeing the police party he became perplexed and retraced his steps. He further deposes that he was seen holding a bag on his right shoulder and thereafter he was apprehended by the police party. On inquiry, he disclosed his name as Prem Lal S/o Puran Chand, who has been identified to be the accused. On search of polythene boru it was found to contain a polythene bag containing charas in the shape of sticks, which was confirmed by the I.O. by smelling and burning. On inquiry, he disclosed his name as Prem Lal S/o Puran Chand, who has been identified to be the accused. On search of polythene boru it was found to contain a polythene bag containing charas in the shape of sticks, which was confirmed by the I.O. by smelling and burning. Consent memo Ext.PW-1/A was also prepared before search of the bag. He deposes that he appended his signatures on the consent memo besides witness Mohinder Singh did likewise. He deposes that the I.O. also gave his personal search to the police party before recovery and memo Ext.PW-1/B was prepared, which has been deposed to be bearing his signatures but he again clarified that it does not bear his signatures. Recovered charas on weighment was found to be 6 K.G. Two samples of 25 grams each were drawn from the recovered charas, and sealed with three seals of seal ‘D’ and the balance charas was put in the same polythene bag and polythene bag was put in that very boru and sealed with five seals of seal ‘D’. Recovered charas alongwith samples was taken into possession vide memo Ext.PW-1/C, which bears his signatures and that of Mohidner Singh. NCB form was filled in on the spot. Copy of the seizure memo was also supplied to the accused. Sample seal was taken on Ex.PW-1/D which bears his signatures in red circle. The seal after use was handed over to Mohinder Singh. Ruqua was written and handed over to SPO Tek Singh for registration of the case. One copy of the ruqua was given to this witness for being taken to SP office, Chamba, which he handed over to constable Om Prakash, on the same day. During the recording of his testimony, a big parcel was produced in Court, whose seals were found intact and bore his signatures. Parcel Ext.P-1 was requested to be opened by the public prosecutor which request was acceded to. On opening of the parcel, a plastic boru was taken out, which is Ext.P-2, and has been deposed by this witness to be the same. On opening of the plastic boru another polythene bag containing charas was taken out from it bearing Ext.P-3 and charas in it is Ext.P-4. Moreover, during the course of recording of his testimony, another sample parcel was produced. The parcel containing three seals of ‘M’ and three seals of ‘D’. On opening of the plastic boru another polythene bag containing charas was taken out from it bearing Ext.P-3 and charas in it is Ext.P-4. Moreover, during the course of recording of his testimony, another sample parcel was produced. The parcel containing three seals of ‘M’ and three seals of ‘D’. Parcel is Ext.P-5 and has been deposed by this witness to be the same. Request to open the same was acceded to and on opening the parcel, a cigarette packet Ext.P-6 containing charas and sample charas Ext.P-7 was retrieved from it. During the course of his cross-examination he has deposed that about 15 houses are situated in village Palgu, whose population is about 150. He also deposes that it is correct that Bhanjararu-Sahoo, is, a busy road and the people pass through, that road. 5. PW-2 Mohinder Singh, has corroborated with full force and vigour, the testimony qua the genesis of the occurrence as deposed by PW-1. PW-3 Tek Chand too has rendered a deposition in consistence with and in harmony with the deposition of PW-1. PW-4 Om Prakash deposes that on 10.1.2009 at about 1.30 p.m copy of ruqua was received by him through constable Prakash Chand, which he entered in receipt register at Sr. No. C15/VD/09 of 10.1.2009 and put it before the then SP, who returned the same to him for being kept in the record. On 12.1.2009 a special report of this case was handed over to him by HHC Rajinder Kumar, which he entered at 3.50 p.m in the receipt register at Sr. No. 460/VD/09 on 12.1.2009 and put it before the Additional Superintendent of Police, who returned the same to him for being kept in the record. Special report has been deposed to be comprised in Ext.PW-4/B. 6. PW-5 constable Ajay Kumar deposes that on 10.1.2009 at about 12.40 p.m at Police Station Tissa, H.C. Varinder Kumar handed over the case property of the case comprising of two small parcels sealed with seal ‘D’ and one big parcel sealed with seal ‘D’ i.e. five seals on big parcel and three seals on each sample parcel, alongwith NCB form to SHO for resealing purposes. He deposes that SHO Brij Mohan Sharma, resealed all the three parcels with seal ‘M’ and prepared reseal memo Ext.PW-5/A, which bear his signatures. He deposes that parcels Ext.P-1 and sample parcel Ext.P-5 bear his signatures. He deposes that SHO Brij Mohan Sharma, resealed all the three parcels with seal ‘M’ and prepared reseal memo Ext.PW-5/A, which bear his signatures. He deposes that parcels Ext.P-1 and sample parcel Ext.P-5 bear his signatures. He further deposes that sample seal Ext.PW-5/B also bears his signatures in red circle. PW-6 Madan Lal, deposes that on 10.1.2009 SHO Brij Mohan Sharma deposited with him two small parcels and one sealed parcel sealed with seal ‘D’, resealed with seal M alongwith sample seal D and M, NCB form, which he entered at Sr. No. 137 of the Malkhana register and kept the case property in the Malkhana. Abstract of Malkhana Register is Ext.PW-6/A, which is true and correct as per the original. He further deposes that on 12.1.2009 one part of the sample parcel alongwith sample seals D and M, NCB form, carbon copy of the seizure memo, photo copy of the F.I.R., Form F, was sent by him to FSL Junga vide RC No. 153/09, who after depositing the sample returned the RC to him. Copy of the RC is Ext.PW-6/B. The receipt regarding deposit of parcel is deposed to be existing on the back of the RC, which is Ext.PW-6/C. The copy of the F.I.R. Ext.PW-6/D has been proved as per original. Report No. 34 regarding departure report Ext.PW-6/E has been deposed to be true and correct as per the original. He has also proved copy of Rapat No. 25 dated 10.1.2009 comprised in Ext.PW-6/F. 7. PW-7 deposes that on 12.1.2009 at about 12.15 p.m MHC Madan Lal, P.S Tissa handed over to him special report of the case for being delivered at SP Office, Chamba. He deposes that he handed over the same to Assistant Reader to SP, Chamba on that very day. He further deposes that on the same day, alongwith the special report, MHC Madan Lal also handed over one sample of the case, alongwith documents for being taken to FSL, Junga. He testifies that he deposited the sample and relevant documents with the concerned clerk in the laboratory at FSL, Junga on 13.1.2009 and obtained receipt on the back of the RC and on return handed over the RC alongwith receipt to MHC. 8. PW-8 Brij Mohan, Inspector, deposes that on 10.1.2009 SPO Tek Chand brought ruqua, on the basis of which F.I.R Ext.PW-6/D, was recorded at the police station and it bears his signatures. 8. PW-8 Brij Mohan, Inspector, deposes that on 10.1.2009 SPO Tek Chand brought ruqua, on the basis of which F.I.R Ext.PW-6/D, was recorded at the police station and it bears his signatures. After registration of the case, case file was handed over to SPO Tek Chand for being taken to the spot. On the same day, HC Varinder Singh, handed over to him two sample parcels, one big parcel, NCB form for resealing purpose. He clarifies that sample seal was also given to him by HC Varinder Singh alongwith the case property. He deposes that the accused was also produced before him. Each sample parcel was sealed with three seals of seal D and big parcel was sealed with five seals of seal D. He deposes that he resealed the case property with seal M in the presence of witnesses SI Ram Nath and constable Ajay Kumar and prepared reseal memo Ext.PW-5/A to that effect. Sample of seal M was taken on Ext.PW-5/B and the seal after use was handed over to constable Ajay Kumar. He filled in the relevant column of NCB form Ext.PW-8/B. He further deposes that the case property after resealing was handed over to MHC Madan Lal alongwith all other materials, which were handed over to him by the IO, for being kept in the Malkhana. Copy of the report of FSL comprised in report Ext.PX. 9. PW-9 deposes, in, absolute unison and in corroboration to the testimonies of PW-1 and PW-2, qua, the genesis of the prosecution case. A studied and incisive perusal, with circumspection, of, the depositions of the prosecution witnesses, who are all official witnesses, divulges the fact of each having deposed in unison qua each link in the chain of circumstances, in as much as, each having deposed qua the fact of (a) in pursuance to the search of boru Ext.P-2 by the Investigating Officer polythene packet Ext.P-3 containing charas Ext.P-4 and sample charas as drawn from Ext.P-7 was found. (b) Each of the prosecution witnesses, in, their respective depositions also, in, unanimity and in harmony convey the fact, of, the Ruqua Ext.PW-9/A having been prepared on the spot and, it, having been dispatched through PW-3 SPO Tek Chand for registration of the case in pursuance to which F.I.R Ext.PW-6/D was lodged. (b) Each of the prosecution witnesses, in, their respective depositions also, in, unanimity and in harmony convey the fact, of, the Ruqua Ext.PW-9/A having been prepared on the spot and, it, having been dispatched through PW-3 SPO Tek Chand for registration of the case in pursuance to which F.I.R Ext.PW-6/D was lodged. (c) They have also consistently deposed qua the factum of special report having been despatched to the Additional Superintendent of Police, Chamba and the factum of its having perused, seen by him and thereafter it having been entered in the relevant register has been deposed by PW-4 Om Prakash. (d) Furthermore, the ensuing links in the chain of the prosecution evidence, in as much, as, all the relevant columns of NCB form having been filled by the Investigating Officer on the spot and the remaining columns of NCB form having been filed by the SHO Brij Mohan PW-8, who also carried out the resealing of the parcel received by him and thereafter his having deposited the case property with the Malkhana Incharge stand firmly established. (e) The seal impression as existing on the parcel tallies as borne in the NCB form. (f) The transmission of the residue parcel for examination by the FSL, Junga under RC stands clinchingly proved by the deposition of PW-7. (g) Lastly, the rendition of report by FSL Junga, comprised in Ext.PX, on examination of the sample parcel sent for rendition of, its, unraveling that the sample as sent for its examination was charas firmly and clinchingly connect the accused with the commission of the offence as alleged. The evidence in proof of all the aforesaid links in the chain of the prosecution evidence has been afforded by the deposition of the prosecution witnesses. Such evidence remains unshetered, as such, sustains and forcefully proves the prosecution case. The testimonies of witnesses cannot be discarded on the sole ground for omission of the Investigating Officer to solicit the presence of independent witnesses, especially, when they convey in their respective testimonies in a uniform and harmonious version qua the prosecution story. Besides, then, omission on the part of the I.O. to join independent witnesses cannot be construed to be fatal. Besides, then, omission on the part of the I.O. to join independent witnesses cannot be construed to be fatal. Consequently, when the independent witness remained not joined their non joining does not infect the prosecution case with the hue of fatality, as, the factum of consent of the accused portrayed in Ext.PW-1/A robs the genesis of the prosecution case of any element or trace, of, fatality. 10. The solitary contention as addressed before this Court, rather a feeble contention as has been raised before this Court by the learned counsel for the accused is anvilled upon the omission of the Investigating Officer to associate independent witnesses, who were available, in the locality and at a proximate distance from the site of occurrence. However, the testimonies of the official witnesses inspire confidence and their depositions do not reek of any vice of inconsistency. Besides, when their depositions are not afflicted with the vice or taint of intra-se contradictions or inter-se contradictions whose existence would otherwise have blemished their testimonies with the vice of prevarication. As a sequel, non-existence of such contradictions, hence, renders their testimonies to be construable to be bespeaking or articulating the truth qua the occurrence. Moreover, it having been deposed by PW-9 that with the place of occurrence being a desolate place forbidding the association of independent witness, more so, given the early hours of the month of January when, it, is dark, hence, when the inhabitants of a nearby village would be unwilling to be joined as witness, to, the search as carried out, their association would not render any fatal flaw to seep into the prosecution version. Besides, even if, PW-9 deposes in his cross-examination that the place of occurrence was a busy road yet the said admission in his cross-examination would not render the prosecution case to be flawed for their non association as no apposite evidence comprised in the cross-examinations of each of the PWs that at this stage either vehicles passed through that road or people too walking on the road, as such, even their non association is not fatal to the prosecution case. 11. The learned trial Court is to be concluded to have appreciated the evidence in a mature and balanced manner and its findings, hence, do not necessitate interference. 11. The learned trial Court is to be concluded to have appreciated the evidence in a mature and balanced manner and its findings, hence, do not necessitate interference. The appeal is dismissed being devoid of any merit and the findings rendered by the learned trial Court are affirmed and maintained.