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Himachal Pradesh High Court · body

2015 DIGILAW 1055 (HP)

Mark Attila Hegedus v. State of Himachal Pradesh

2015-08-07

RAJIV SHARMA, SURESHWAR THAKUR

body2015
JUDGMENT : Rajiv Sharma, J. This appeal is instituted against Judgment dated 1.5.2013 rendered by learned Special Judge, Kullu, Himachal Pradesh in Sessions Trial No. 74/2012, whereby appellantaccused (hereinafter referred to as 'accused' for convenience sake) who was charged with and tried for offence under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as 'Act' for convenience sake), has been convicted and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1.00 Lakh and in default of payment of fine, to further undergo imprisonment for one year. 2. Case of the prosecution, in a nutshell, is that on 11.5.2012 police party under the leadership of ASI Dheeraj Singh (PW8) consisting of Constable Pritam Singh (PW7), HC Brij Bhushan and Constable Bhim Sen left police station towards Reuni Nallah. At about 5.00 pm, when they were present at Reuni Nallah they noticed accused coming from Katagla side towards Chowki side. He was stopped. His antecedents were enquired. His passport was checked. He was carrying a trolley bag on his back. On checking of the trolley, two denim pants one half pant, one book, one pair of socks, one mattress and one pair of shoes were found in it. The base of the trolley was stitched with machine and having a hole. The accused could not explain about the hole when inquired about it. This raised suspicion in the mind of the police. PW8 ASI Dheeraj Singh checked the hole. He found brown and black coloured cello tape below raxin. On removal of said tape, Charas in the shape of Chapatinuma was recovered concealed in it. Charas was weighed and it was found to be 1 kg 970 GMS. Charas was repacked and sealed with a cloth parcel Ext. P1 with seal of letter ‘H’. Sample seal Ext. PW-6/A was drawn. NCB form Ext. PW-5/A was filled and same was handed over to HC Brij Bhushan. Case property was taken into possession vide seizure memo Ext. PW-6/B. Rukka Ext. PW-6/C was prepared and sent to police station Kullu, through constable Pritam Singh. FIR Ext. PW-6/D was prepared. Case property was produced before SI/ SHO Om Chand, PW-5 for resealing who resealed the parcel with six seals of letter ‘O’, filled relevant columns of NCB form, sample seal ‘O’ was drawn vide Ext. PW-6/B. Rukka Ext. PW-6/C was prepared and sent to police station Kullu, through constable Pritam Singh. FIR Ext. PW-6/D was prepared. Case property was produced before SI/ SHO Om Chand, PW-5 for resealing who resealed the parcel with six seals of letter ‘O’, filled relevant columns of NCB form, sample seal ‘O’ was drawn vide Ext. PW-5/A. Thereafter, he deposited case property alongwith NCB form, sample seal and other relevant documents with MHC PW-2. Relevant entry was made and abstract of Malkhana Register is Ext. PW-1/A. Contraband was sent to Forensic Science Laboratory Junga. Report of Forensic Science Laboratory is Ext. PA. Matter was investigated. Challan was put up in the Court after completing all the codal formalities. 3. Prosecution has examined as many as 8 witnesses to prove its case against the accused. Accused was also examined under Section 313 CrPC. He pleaded innocence. Trial Court convicted and sentenced the accused as noticed above. Hence, this appeal. 4. Mr. Karan Singh Kanwar, Advocate has vehemently argued that the prosecution has failed to prove its case against the accused. 5. Mr. M.A. Khan, Additional Advocate General, has supported the judgment of conviction. 6. We have heard the learned counsel for the parties and also gone through the record carefully. 7. PW-1 Ram Krishan testified that on 12.5.2005 SISHO Om Chand deposited a parcel sealed with six seals of seal ‘H’ and resealed with six seals of seal ‘O’ stated to be containing contraband. He made entries qua deposit in the Register No. 19 at Sr. No. 47. He proved abstract of Register Ext. PW-1/A. On the same day, ASI Dhiraj Singh deposited a parcel stated to be containing personal articles alongwith the trolley bag of the accused. He made entry at Sr. No. 46 of the Malkhana register. In his cross-examination, he has deposed that Ext. P1 was deposited with him at 2.50 pm. 8. PW-2 Jai Singh deposed that parcel Ext. P1 of the case was handed over to constable Sangat Ram alongwith NCB form in triplicate, copy of FIR, copy of seizure memo, samples of seal ‘O’ and ‘H’, with the direction to take the same to Forensic Science Laboratory Junga vide RC No. 97/2012 dated 1.5.2015 vide Ext. PW-2/A. Sangat Ram deposited the case property and handed over receipt to him. PW-2/A. Sangat Ram deposited the case property and handed over receipt to him. In his crossexamination, he has admitted that docket was prepared by SHO and sent with case property. 9. Statement of PW-2 Jai Singh, has been corroborated by PW-3 Sangat Ram. He deposed that on 13.5.2012, MHC PS Kullu handed over a parcel sealed with six seals of ‘H’ and six seals of ‘O’, stated to be containing 1.970 kg Charas, alongwith copy of FIR, copy of seizure memo, copy of RC, docket and copy of NCB form, sample seals ‘H’ and ‘O’, with the direction to deposit the same with Forensic Science Laboratory Junga vide RC Ext. PW-2/A. He deposited the parcel with the relevant documents at Forensic Science Laboratory Junga on 14.5.2012 and returned the RC and receipt to MHC. So long the case property remained with him, it was kept safe and un-tampered. 10. PW-4 Balbir Sharma is a formal witness. 11. PW-5 SI Om Chand deposed that he was posted as such at police Station. ASI Dhiraj Singh at 2.00 pm produced a cloth parcel sealed with six seals of seal ‘H’ stated to be containing 1 kg 970 GMS of Charas alongwith NCB form in triplicate. He resealed them with seal ‘O’ six in number. He filled in relevant columns of NCB form. Specimen seal was put on NCB-1 form. Thereafter, case property was deposited with MHC Ram Krishan alongwith relevant documents. 12. PW-6 Pritam Singh deposed that at 5.00 pm, he was present alongwith Dheeraj Singh and HC Brij Bhushan and C. Bim Sen at Reuni Nallah. They noticed accused coming from Katagla side towards Chowki. Passport of accused was checked. Since it was a forest path, accused was inquired about his presence on forest path at 5.00 pm. He could not give a satisfactory answer. Accused was carrying a bag. He offered search of his bag and laptop and other articles. There was a hole in the base of bag. Accused was inquired about the whole. He got perplexed and stated the he did not know. His activities raised suspicion. IO on checking found black raxin was affixed on the hole with the help of fevi quick on teakply. On removal of raxine, they found black and khaki coloured cello tape. On opening Cello Tape, three chapatti shaped black coloured substance was found. He got perplexed and stated the he did not know. His activities raised suspicion. IO on checking found black raxin was affixed on the hole with the help of fevi quick on teakply. On removal of raxine, they found black and khaki coloured cello tape. On opening Cello Tape, three chapatti shaped black coloured substance was found. IO found that it was Charas Charas was weighed. It weighed 1.970 kg. Chapattis were folded and kept in cloth parcel. The parcel was sealed with six seals of ‘H’. Parcel was taken into possession vide Ext. PW- 6/B. Thereafter IO prepared Rukka vide Ext. PW-6/C. He delivered Rukka in police station, on the basis of which FIR Ext. PW-6/B was registered. 13. PW-7 Munish Kumar is a formal witness. 14. PW-8 ASI Dheeraj Singh has also deposed the manner in which accused was apprehended and codal formalities of seizure, sampling and sealing were completed at the spot. He filled in NCB form in triplicate. He prepared Rukka Ext. PW-6/C. He also prepared site map Ext. PW-8/A. He produced case property before SI /SHO Om Chand on the next day alongwith NCB form and other relevant documents. He prepared special report Ext. PW-4/A. 15. Ms. Karan Singh Kanwar, Advocate has argued that as per the statement of PW-1, it was 12.5.2005 when Om Chand deposited a parcel sealed with six seals of seal ‘H and resealed with seal ‘O’ containing 1.970 kg chars. It is a typographical mistake since it has come on record that case property was handed over to PW-1 HC Ram Krishan on 12.5.2012. He then argued that PW-2 has not produced copy of docket. PW-2 Jai Singh deposed that parcel Ext. P1 of the case was handed over to Constable Sangat Ram alongwith NCB I form in triplicate, copy of FIR, copy of seizure memo, sample seals ‘O’ and ‘H’ with the direction to deposit the same at Forensic Science Laboratory vide RC No. 97/12 dated 1.5.2012. PW-3, as noticed above, has corroborated the statement of PW-2 that he has taken case property to FSL Junga vide Ext. PW-2/A. 16. Mr. Karan Singh Kanwar, Advocate, has further argued that prosecution has not associated any independent witnesses. Accused was apprehended on a forest road in the evening at 5.00 pm. It was a secluded and isolated place. PW-3, as noticed above, has corroborated the statement of PW-2 that he has taken case property to FSL Junga vide Ext. PW-2/A. 16. Mr. Karan Singh Kanwar, Advocate, has further argued that prosecution has not associated any independent witnesses. Accused was apprehended on a forest road in the evening at 5.00 pm. It was a secluded and isolated place. Statement of PW-6 Pritam Singh and PW-8 Dheeraj Singh, inspire confidence and have rightly been relied upon by the trial Court. The mandatory provisions of the Act have been complied with at the time when accused was apprehended, search, seizure and sealing process was completed at the spot. Resealing is as per the procedure laid down in law. Rukka was prepared. It was taken to police station, on the basis of which FIR was registered. PW-8 Dheeraj Singh has produced case property before PW-5 Om Chand. He resealed the same with seal ‘O’. Necessary entry was made in the Malkhana Register at Sr. No. 47. Case property was thereafter sent to FSL Junga, through Sangat Ram, PW-3. He deposited the same and returned RC to MHC. FSL Report is Ext. PA. It has come in the report that the microscopic examination indicated presence of Cystolithic hair and Charas was resinous mass which on testing was found present in the exhibit. Quantity of resin as found in exhibit stated as Charas was 37.94% w/w. Six seals of seal ‘H’ and six seals of seal ‘O’ were found intact and tallied with the specimen seal sent by forwarding authority and seal impressions impressed on NCB form I. 17. Mr. Karan Singh Kanwar, Advocate has further argued that record of entry No. 46 was not annexed with challan form. However, the same was taken on record while recording statement of PW-1 and no objection was taken then. Contraband was deposited with PW-1 Ram Krishan on 12.5.2012 at Sr. No. 47. Abstract of the same is proved by PW-1 vide Ext. PW-1/A. Ext.PW-1/B only pertains to items other than Charas, which were recovered from the possession of the accused. Non-production of the seal by the prosecution could not, in any way, dilute the case of the prosecution in view of the overwhelming evidence and manner in which sealing and resealing was completed and sample has reached FSL Junga intact with seals ‘H’ and ‘O’. 18. Non-production of the seal by the prosecution could not, in any way, dilute the case of the prosecution in view of the overwhelming evidence and manner in which sealing and resealing was completed and sample has reached FSL Junga intact with seals ‘H’ and ‘O’. 18. Prosecution has duly proved its case that case property was recovered from the conscious possession of accused. There is no reason for us to interfere with the well reasoned judgment of the trial Court. 19. In view of the discussion and analysis made herein above, there is no merit in the present appeal and the same is dismissed, so also the pending applications, if any.