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2014 DIGILAW 963 (HP)

Darshan Singh v. State of H. P.

2014-07-23

RAJIV SHARMA, SURESHWAR THAKUR

body2014
JUDGMENT : - Sureshwar Thakur, Judge. This appeal is directed against the judgment rendered on 4th March, 2008, by the learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr, H.P. in Sessions Trial No.10 of 2006, whereby, the appellant has been convicted and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/- for the commission of offence punishable under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as ‘NDPS Act’) and in default of payment of fine, he has been sentenced to undergo further simple imprisonment for two years. 2. The facts, leading to the case, are that on 1.2.2006, at about 4.10 a.m., ASI Keshav Singh, Incharge, P.P. City, Rampur Bushahr, along with HC Liaq Ram, HC Des Raj and Constable Sohan Lal, was present at Gandhi Park, near public toilet, Lower Bazaar, Rampur and had laid a nakabandi, when a person was found coming from the side of Jagatkhana bridge and was coming towards Rampur and was carrying a rexine bag in his hand and when he saw the police, then he got perplexed and the police officials nabbed him and After inquiry, he disclosed his name as Darshan Singh, resident of Kaithal, Haryana. On suspicion, the Investigating Officer conducted the search of the bag of the accused in the presence of police officials only as no independent witness was present at that time. During search of the Rexene bag, inside it were found some clothes and below the clothes, there was one polythene bag bearing the imprint of “Amar Tax” and inside the bag there was Charas in the shape of candles and balls which was weighed with the help of weighing scale and was found to be 4.600 Kgs. The Investigating Officer took two samples of 25 grams each from the bulk and sealed the samples and the bulk separately in parcels of cloth with seal ‘T’ and prepared a seizure memo which was signed by the Investigating Officer and the witnesses and the accused. The NCB Form in triplicate was also filled and specimen of the seal was also taken on a piece of cloth and the seal was handed over to HC Liaq Ram. The NCB Form in triplicate was also filled and specimen of the seal was also taken on a piece of cloth and the seal was handed over to HC Liaq Ram. The photographs of the spot were also taken and the accused was informed about the offence committed by him and about his arrest for the offence committed by him. The Investigating Officer sent Ruqua to Police Station, Rampur for registration of case through Constable Sohan Lal and on the basis of the Ruqua, F.I.R. No.21/2006 came to be registered against the accused. The Investigating Officer prepared the site plan and the personal search of the accused was also taken and a memo to this effect was also prepared. The accused was arrested and information about his arrest was given to his near relative. The parcel of bulk and samples were produced before the S.H.O. B.D.Bhatia, Police Station, Rampur which were re-sealed by the S.H.O. with seal ‘K’ and the case property was deposited with the MHC, in the Police Station. Special report was sent, through Constable Ranjit Singh to Dy.S.P., Rampur. One of the samples was sent to CTL Kandaghat for analysis and after completion of investigation, the SHO, Police Station, Rampur, submitted the charge-sheet against the accused. 3. On conclusion of the investigation into the offence, allegedly committed by the accused, challan was filed under Section 173 of the Code of Criminal Procedure. 4. The accused was charged for his having committed offences punishable under Section 20 of the NDPS Act by the learned trial Court to which he pleaded not guilty and claimed trial. 5. In proof of the prosecution case, the prosecution examined as many as 11 witnesses. On closure of the prosecution evidence, statement of appellant/accused under Section 313 Cr.P.C. was recorded by the Court in which the accused claimed false implication and pleaded innocence. In defence, the appellant/accused chose not to enter into any defence. 6. On appraisal of evidence on record, the learned trial Court convicted and sentenced the accused for his having committed an offence under Section 20 of the NDPS Act. 7. To prove the genesis of the prosecution case, the first witness, who stepped into the witness box, was HC Liaq Ram (PW-1). 6. On appraisal of evidence on record, the learned trial Court convicted and sentenced the accused for his having committed an offence under Section 20 of the NDPS Act. 7. To prove the genesis of the prosecution case, the first witness, who stepped into the witness box, was HC Liaq Ram (PW-1). He in his testimony has deposed that on 1.2.2006, he, along with ASi Keshav Singh, Constable Sohan Lal and HC Des Raj, was on patrolling and nakabandi duty at Gandhi Park near Public Toilet, near the bridge leading to Jagat Khana. At about 4.10 a.m., one person came from Jagatkhana, carrying one Rexene bag of black colour on his shoulder and ‘AXO’ was written on the bag. That person on seeing the police was frightened and his behaviour arousing suspicion of his carrying some narcotic substance, was asked by the ASI as to whether he wants to give his search to him or not. The accused consented to his being searched by ASI. He deposes that, no, independent witnesses were available, as it was night time. The consent, as procured from the accused for his being searched by the Investigating Officer, was procured in writing as well as orally. This witness continues to depose that the bag of the accused was opened and the same was found containing one white shirt, one white pant and one half sleeves sweater and one polythene bag of ‘Amar Tax”. In the polythene bag, there was some substance of black colour in the shape of candles and balls, which on smelling was found to be charas. Photographs of the Charas were taken on the spot. Constable Sohan Lal was sent to bring balance and weights, who brought the same from Sharma Sweet Shop and on weighing, the same was found 4 kilo 600 grams. The Investigating Officer took two samples of 25 grams each from the bulk and sealed the same in two separate parcels of cloth and the bulk was sealed separately with seal ‘T’. PW-1 further deposes that the Investigating Officer prepared the seizure memo Ext.PW-1/A which was signed by this witness, accused, Des Raj and by the Investigating Officer. Seal was handed over to this witness after taking sample of seal Ext.PW-1/B which bears the signatures of this witness and signatures of Des Raj. PW-1 further deposes that the Investigating Officer prepared the seizure memo Ext.PW-1/A which was signed by this witness, accused, Des Raj and by the Investigating Officer. Seal was handed over to this witness after taking sample of seal Ext.PW-1/B which bears the signatures of this witness and signatures of Des Raj. He deposes that the Investigating Officer filled NCB Form in triplicate from column No.1 to 8. He proceeded to clarify that column No.1 to 7 were filled and at column No.8 seal ‘T’ was embossed. The bulk and the two samples and the pant, shirt and sweater were put in the same bag. Before taking search of the accused and his bag, the search of the Investigating Officer was conducted by the accused and memo Ext.PW-1/C was prepared. After carrying out the personal search of the accused, one pair of gloves, wrist watch, mobile, currency notes of Rs.1080/- of different denominations, one handkerchief, two golden finger rings, one diary and one purse and some receipts were recovered which were taken into possession vide memo Ext.PW-1/D, which was signed by this witness, accused and the Investigating Officer. Ruqua was sent through Constable Sohan Lal to be taken to the Police Station for registration of the case. Bag Ext.P-1 as deposed by him to the same. Sealed parcel, sealed with seals ‘X’ and ‘K’ were permitted by the learned Sessions Judge to be opened. The seals were intact and opening the parcel, it was found to contain another sealed parcel sealed with seal ‘T’. The seals of other parcel were permitted to be opened by the learned Sessions Judge. On opening the parcel, the same was found containing one polythene bag of ‘Amar Tax’ which found to be containing some black substance in the shape of candles and balls. The bulk has been deposed to be Ext.P-2. The learned P.P., also, requested the learned Sessions Judge to open another sealed parcel sealed with seal ‘K’ which was deposed to contain 25 grams of sample of charas. The seals of the sample were found intact. The sample was permitted to be opened by the learned Sessions Judge which after opening was found to contain another sealed parcel sealed with seal ‘T’. The seals of the other parcel were also found intact and it was permitted to be opened. The seals of the sample were found intact. The sample was permitted to be opened by the learned Sessions Judge which after opening was found to contain another sealed parcel sealed with seal ‘T’. The seals of the other parcel were also found intact and it was permitted to be opened. On opening the parcel, the same was found containing one paper pack of four square in which charas in the shape of candles and balls was found. The sample is Ext.P-3, sweater Ext.P-4, Pant Ext.P-5 and shirt Ext.P-6 which have been deposed to be the same, as recovered from the bag Ext.P-1. 8. PW-2 (Constable Sohan Lal) has corroborated the testimony of PW-1 in respect of the narration deposed by him qua the genesis of the prosecution case. PW-3 (Inder Dutt Sharma) has deposed that on 1.2.2006, one Constable Sohan Lal came to his shop at about 4.45 a.m. and told that they had caught ‘Bhang’ and wanted weights. He deposes that on his request, he gave one weighing scale and the weights of 2 Kg one, 1 Kg two weights and weights of 500 grams, 200 grams, 100 grams and 50 grams, which were returned to him at about 5.30 a.m. 9. PW-4 (HC Devi Singh) deposes that on 1.2.2006, Inspector S.H.O. B.D.Bhatia deposited three parcels sealed with seal ‘A’ along with sample of seal and NCB Form in triplicate and this witness entered the same in the Malkhana register No.19. He testifies that he has brought the original register and seen the entries and the same photocopy of the same is Ext.PW-4/A in two leaves. He further deposes that one of the samples was handed over to Constable Ranjit Singh on 3.2.2006 along with seal of sample and NCB Form in triplicate vide RC No.147/5-06. He deposes that he had brought the original RC, photocopy whereof is Ext.PW-4/B. He had also brought in the Court the Raznamcha of Police Station, Rampur and he deposes that Rapat No.20 dated 1.2.2006 is scribed by MC Kuldeep Singh comprised in Ext.PW-4/C which has been deposed to be correct as per the original. This witness further deposes that Constable Ranjit Singh handed over the RC to him. He continues to depose that so long as the case property remained in his custody, the same was not tampered with. 10. This witness further deposes that Constable Ranjit Singh handed over the RC to him. He continues to depose that so long as the case property remained in his custody, the same was not tampered with. 10. PW-5 (HC Kanwar Singh) deposes that on 2.2.2006, Constable Ranjit Singh handed over Special Report to him and he handed over the same to Dy.S.P. on the same day. He deposes that he entered the same in the diary register. He continues to depose that he had brought the original Special Report and diary register of Dy.S.P. Office, Rampur in the Court and he proved the copy of the abstract of diary register dated 2.2.2006 which is comprised in Ext.PW-5/A and is true and correct as per the original. Copy of the special report Ext.PW-5/B has also been proved as per original. Lastly, he deposes that original Special Report and copy thereof bears signatures of Ajay Bodh, Dy.S.P. as he worked under him. 11. PW-6 (Constable Ranjit Singh) deposes that on 3.2.2006, MHC Devi Singh handed over to him one parcel duly sealed with seal ‘K’ along with sample of seals, NCB form in triplicate, copy of F.I.R., recovery memo vide RC No.147/05/05 for depositing the same in CTL Kandaghat. He deposes that he deposited the same at CTL Kandaghat on the same day and handed over the RC to MHC Devi Singh. He further deposes that so long as the case property remained in his custody, the same was un-tampered. 12. PW-7 (Contable Rattan Chand) in his deposition proved Ext.PW-7/A which is copy of daily diary No.17 dated 1.2.2006 from the original produced in the Court. PW-8 (B.D.Bhatia, Inspector/S.H.O.) deposes that on 1.2.2006, Ruqua Mark-A was received at Police Station, Rampur, which bears his endorsement, the copy of which is Ext.PW-8/A. He deposes that on the basis of Ruqua, he lodged F.I.R. Ext.PW-8/B which also bears his signatures. This witness further deposes that he sent the copy of F.I.R. for investigation to ASI Keshav Singh and on the same day, ASI Keshav Singh produced before him three parcels, duly sealed with seal ‘T’ along with a bag, NCB Form and sample of seal. In his cross-examination, he deposes, that the NCB Form bears his signatures encircled with red ink and does not bear the signatures of ASI Keshav Singh, Investigating Officer. In his cross-examination, he deposes, that the NCB Form bears his signatures encircled with red ink and does not bear the signatures of ASI Keshav Singh, Investigating Officer. He deposes that seal ‘K’ was with him and he had kept it safely at his house. 13. PW-9 (SI Ishwar Dutt) deposes that he prepared the challan of the present case which has been deposed to bear his signatures and submitted the same in Court, besides he deposes that he prepared the supplementary challan which also bears his signatures. The report of the Chemical Examiner is deposed to be comprised in Ext.PX. 14. PW-10 (Constable Ranjit Singh) deposes that on 2.2.2006, ASI Keshav Singh, Incharge, PP City Rampur, handed over him a Special Report of case F.I.R. No.21/06, which he handed over to the Reader to SDPO, Rampur, Kanwar Singh at 10 a.m. 15. PW-11 (ASI Keshav Singh) is the deposition of the Investigating Officer, who has deposed in conformity with the depositions of PW-1 and PW-10, as such, he corroborated the testimonies of PW-1 and PW-2 qua the genesis of the prosecution case as comprised in the testimonies of PW-1 and PW-2. In his cross-examination, he admits the suggestion put to him that, while deputing Constable Sohan Lal to bring weights and scales he did not ask to procure independent witnesses. He has admitted that in photographs, photo of the accused does not exist. He deposes that in the month of January, it is dark at 4 p.m. However, also admits the suggestion put to him by the learned counsel that the street lights were available at the place where the photographs clicked. 16. With the able assistance of the counsel appearing on either side, this Court, in, a threadbare manner scrutinized the entire evidence on record. 17. 16. With the able assistance of the counsel appearing on either side, this Court, in, a threadbare manner scrutinized the entire evidence on record. 17. The deposition of the official witnesses qua all facets of the genesis of the prosecution case, commencing from search, seizure and recovery of Ext.P-1, the bag, which was being carried by the accused/appellant, qua the fact of bulk Charas Ext.P-2, having been recovered from inside the bag, as also, sample Ext.P-3 having come to be extracted from bulk Charas Ext.P-2, preparation of Ruqua, sealing of case property, lodging of F.I.R., preparation and completion of NCB Form, the RC certificate accompanying the case property, being transmitted for rendition of opinion of CTL Kandaghat, whose opinion comprised in Ext.PX being devoid of any inter-se or intra-se inconsistency or contradiction, rather being in harmony, as such, convincingly and forthrightly connect the accused/appellant in the aforesaid alleged commission of the offence. Even though, weights and scales were procured by Constable Sohan Lal from Sharma Sweet Shop, located in Rampur Bazar and even though the Investigating Officer concedes to the fact of his not having asked Constable Sohan Lal, while directing him to fetch weights and scales from Sharma Sweet Shop, to request the latter for being associated in the proceedings relating to search and seizure would not, hence, for omission on the part of the Investigating Officer, to, associate independent witnesses, cause any fatality to the prosecution case, especially, when the testimony of the official witnesses are consistent and in harmony with each other qua each of the chains in the chain of circumstances connecting the accused/appellant in the commission of the offence of his consciously and exclusively possessing the contraband in rexine bag Ext.P-1. Even otherwise, the omission on the part of the Investigating Officer to direct Constable Sohan Lal to while dispatching him to bring weights and scales for weighing the seized contraband to request the owner of Sharma Sweet Shop being associated in the proceedings, cannot also be construed to be a deliberate and willful omission casting aspersions on the transparency of the investigation carried out at that stage, given the fact that the said directions handed over to Constable Sohan Lal by the Investigating Officer for fetching weights and scales from the owner of Sharma Sweet Shop, were rendered subsequent to the completion of the proceedings of search, seizure and recovery of contraband from the conscious and exclusive possession of accused/appellant, as, carried by him in his bag Ext.P-1. Hence, even if his presence was procured, it was wholly unnecessary for his participating in the proceedings relating to search, seizure and recovery of contraband, which then had come to be completed. 18. Also, the fact of the accused/appellant owning the bag Ext.P-1, is, forcefully conveyed by the fact of his carrying sweater Ext.P-4, Pants Ext.P-5 and shirt Ext.P-6 inside Ext.P-1. In the face of no concerted effort having made by the defence counsel to unearth any material to portray the lack of ownership of the appellant/accused of sweater Ext.P-4, Pants Ext.P-5 and shirt Ext.P-6 carried in Ext.P-1, from which contraband was recovered, to the considered mind of this Court, invincibly and convincingly, sprout the inference that the accused/appellant was the owner of Ext.P-1 and of the personal belongings, as recovered from it, besides concomitantly of the contraband to inside it, therefore, the contraband, as recovered from the Bag Ext.P-1, is to be held to be in his exclusive and conscious possession. 19. The learned counsel appearing for the accused/appellant, before this Court, has contended that; (a) the prosecution case is rendered infirm on the score of theirs being a variation in the weight of sample Charas taken by the Investigating Officer and revelation of its weight by Chemical Examiner, CTL Kandaghat, to which it was sent for rendition of opinion. However, given the fact that the variation in the weight of the sample Charas, as disclosed by the Investigating Officer, is minimal, in as much, as, the deficiency is, too, negligible in as much as to the extent of 3.10 grams. However, given the fact that the variation in the weight of the sample Charas, as disclosed by the Investigating Officer, is minimal, in as much, as, the deficiency is, too, negligible in as much as to the extent of 3.10 grams. In face thereof, when it is attributable to the fact that the weights and scales, used by the Investigating Officer for weighing the seized Charas at the spot were manual whereas the weights used for weighing the sample parcels at CTL Kandaghat, are sophisticated, obviously, with the former revealing an inexact and inaccurate weight, of sample vis-à-vis the exact revelation by the sophisticated scales at CTL, Kandaghat. Consequently, the variation, as has come to be begotten when attributable to the aforesaid fact, cannot render any iota of doubt to seep into the prosecution case. Resultantly, the said submission stands to be rejected. 20. Lastly, the learned counsel for the appellant/accused assailed the impugned judgment of conviction, rendered by the learned trial Court, on the score that given that on the completion of the proceedings relating to search, seizure and recovery of contraband from the alleged exclusive and conscious possession of the appellant/accused, photographs were clicked and in the photographs only the bag, from which charas was recovered, were clicked, exists, hence, when the photo of the appellant/accused does not exist in the photographs, it cannot be said that the bag Ext.P-1, from which the Charas was allegedly recovered, was consciously and exclusively possessed by the appellant/accused. The above argument necessitates straightaway rejection on the score of the inference as drawn herein-above of the appellant/accused being owner of Ext.P-1, the items and his personal belongings, which were carried inside it, too, have been forcefully established to be owned by him. Besides, when the photographs of the bag were clicked, on the completion of the proceedings of search, seizure and recovery as also when in the cross-examination of PW-11 (ASI Keshav Singh), the learned defence counsel has put a suggestion to the latter that the place of the occurrence is one furlong from Rampur Bazar, in as much, as, it being 20-25 steps from the toilets, which suggestion per-se conveys an admission of the presence of the accused at the site of the occurrence. Consequently, with the admission of the presence of the accused at the site of occurrence, more forcefully conveyed by the fact that on the fateful day, he, has conceded to be waiting in the Rain Shelter with the contemplation to visit Bhima Kali Temple, disrobes the aforesaid contention of the learned counsel for the appellant/accused, emanating from the omission of his photo in the photographs to be his, hence, not being available at the site of occurrence, of its tenacity and efficacy. Even though, the learned counsel for the appellant/accused submits that given the existence of the admission of the deposition in the testimony of Investigating Officer that in the early morning hours of month of January, there is darkness, whereas, the photographs, placed on record, show light, hence, the proceedings were not conducted at the time and place, as comprised in the Ruqua and F.I.R. qua the occurrence. Consequently, though he concerts to further concomitantly contend before this Court that the genesis of the prosecution story, is, prevaricated. The above submission has, no, force in the face of the fact that there exist a suggestion in the cross examination of PW-11 that there was street light available, as such, the portrayal of light in photographs can be attributable to the lights diffused by street lights. As a sequel, the contention of the learned counsel for the appellant/accused, cannot, be accepted that the photographs were clicked at dawn and whereas it was darkness at the purported time of the purported seizure of contraband from the exclusive and conscious possession of the accused. Nor also can it be accepted that the entire proceedings are concocted and invented. This Court places implicit reliance to the deposition of the independent witnesses as their testimonies, bereft of any inter-se or intra-se contradictions, rather, their close reading discloses, hence, their testimonies are reliable and inspiring, even in the absence of non-joining of independent witnesses by the Investigating Officer. In view of the above, we find that the findings of the conviction, recorded by the learned trial Court below, are based on a mature and balanced appreciation of evidence on record. Hence, the findings do not necessitate irreverence. 21. In upshot, the findings of conviction and sentence, recorded by the learned trial Court, do not merit interference. In view of the above, we find that the findings of the conviction, recorded by the learned trial Court below, are based on a mature and balanced appreciation of evidence on record. Hence, the findings do not necessitate irreverence. 21. In upshot, the findings of conviction and sentence, recorded by the learned trial Court, do not merit interference. The appeal, preferred by the appellant/accused, is dismissed and the judgment, rendered on 4th March, 2008, by the learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr, H.P., in Sessions Trial No. 10 of 2006, is maintained and affirmed.