Research › Search › Judgment

Himachal Pradesh High Court · body

2015 DIGILAW 302 (HP)

Kanwar Singh v. State of H. P.

2015-04-08

RAJIV SHARMA, SURESHWAR THAKUR

body2015
JUDGMENT : Sureshwar Thakur, J. These appeals arise from a common judgment hence are being disposed of by a common judgment. The aforesaid appeals have been preferred by the appellants/accused against the judgment, rendered on 07.06.2011 by the learned Additional Sessions Judge, Kinnaur at Rampur, H.P. in Sessions Trial No. 26-AR/3 of 2010, whereby they have been convicted and sentenced to undergo 10 years rigorous imprisonment and to pay a fine of Rs.1,00,000/- each for theirs having committed offence punishable under Section 20 (ii) (c) of the Narcotic Drugs & Psychotropic Substances Act, 1985 (herein-after referred to as ‘NDPS Act’). In default of payment of fine, they have been sentenced to further undergo rigorous imprisonment for two years. 2. Brief facts of the case are that on 09.06.2009 at about 4.00 a.m, PW-9 ASI Lunder Singh along with H.C. Pune Ram, H.C. Pushap Dev, C. Bhoop Singh left police station Ani in official vehicle bearing No. HP-34-298 driven being driven by C. Hem Raj for laying Naka towards Chakapani side. An entry qua the departure of PW-9 ASI Luder Singh along with other police officials in a official vehicle was recorded in daily diary No.3, Ex.PW9/A. The police patrol arrived at Chakkapani near Thini at about 4.30 a.m., laid a Naka there. At about 5.45 A.M. Car No. HR-06-N-9706 appeared from Ani side. It was stopped for checking. Accused Kanwar Singh was in the driver’s seat and accused Dalbir was sitting on the front seat. Accused Bablu and Rajesh were sitting on the back seat. On suspicion the search of the car was conducted. One polythene bag containing charas weighing 3.500 kg was found under the seat which was occupied by accused Dalbir. Two samples each weighing 25 grams were separated and put into parcels which were marked as S-1 and S-2 and sealed with seal impression X. The remaining charas weighing 3 kgs 450 grams was put back into the same polythene bag which was also put into a parcel which was marked as P-1 and sealed with seal impression X. NCB forms in triplicate were filled in. Case property was taken into possession vide seizure memo Ex.PW6/O. Rukka Ex.PW6/A was drawn and sent to police station Ani for registration of case. Case property was taken into possession vide seizure memo Ex.PW6/O. Rukka Ex.PW6/A was drawn and sent to police station Ani for registration of case. Parcels containing the bulk stuff and the samples were deposited with PW-4 MHC Anup Kumar, who affixed his own seal, which produced the impression of English letter ‘H’. Sepcial Report Ex.PW3/B was sent to SDPO, Ani. Case property was sent to the chemical examiner, FSL Junga who opined its contents to be of charas. 3. After completion of the necessary investigation, into the offences, allegedly committed by the accused/appellants, challan was filed under Section 173 of the Code of Criminal Procedure. 4. The accused/appellants were charged for theirs having committed offences punishable under Sections 20 and 29 of the NDPS Act, by the learned trial Court, to which they pleaded not guilty and claimed trial. 5. In proof of the prosecution case, the prosecution examined as many as 9 witnesses. On closure of the prosecution evidence, the statements of the accused under Section 313 Cr.P.C., were recorded by the learned trial Court, in which they claimed false implication and pleaded innocence. In defence, the appellants/accused have examined one witness. 6. On appraisal of the evidence on record, the learned trial Court convicted the accused for theirs having committed offence punishable under Sections 20 (ii) (c) of the NDPS Act. 7. The appellants/accused are aggrieved by the judgment of conviction, recorded by the learned trial Court. The learned counsel for the accused, have concertedly and vigorously contended that the findings of conviction, recorded by the learned trial Court, are not based on a proper appreciation of the evidence on record, rather, they are sequelled by gross mis-appreciation of the material on record. Hence, they contend that the findings of conviction be reversed by this Court, in the exercise of its appellate jurisdiction and be replaced by findings of acquittal. 8. On the other hand, the learned Assistant Advocate General, appearing for the respondent-State, has, with considerable force and vigour, contended that the findings of conviction, recorded by the Court below, are based on a mature and balanced appreciation of evidence on record and do not necessitate interference, rather merit vindication. 9. This Court with the able assistance of the learned counsel on either side, has, with studied care and incision, evaluated the entire evidence on record. 10. 9. This Court with the able assistance of the learned counsel on either side, has, with studied care and incision, evaluated the entire evidence on record. 10. The genesis of the prosecution version imputing an inculpatory role to all the accused, inasmuch as contraband weighing 3.500 kg having been recovered from the conscious and exclusive possession of the accused persons inasmuch as from a red colour car No. HR-06-N-9076 from underneath the seat occupied by accused Dalbir Singh, which at the apposite relevant time was being driven by accused Kanwar Singh, whereas, accused Dalbir Singh was occupying the front seat of the car besides accused Rajesh and Bablu were occupying the rear seat of the car, is unfolded in the depositions of the official witnesses, namely, PW-6 H.C. Pune Ram, PW-8 HHC Bhoop Singh and PW-9 ASI Luder Singh. All the official witnesses aforesaid have deposed in tandem and in harmony qua the factum of recovery of charas weighing 3.500 kg having been effected from a red colour car bearing No. HR-6N- 9076 which was being occupied by all the accused in the manner aforesaid. They have also deposed in harmony qua the factum of each of the accused having been apprised by PW-9 of the legal right inhering in them of theirs being liable to be searched in the presence of a Magistrate or a gazetted officer. However, each of the accused under consent memos Ex. PW6/A to Ex.PW6/D opted to be searched by the police on the spot. Each of the aforesaid official witnesses have deposed in unison qua the further factum of each of them having given their search to each of the accused under search memos Ex.PW6/E to Ex.PW6/H. Thereafter, the personal search of each of the accused was carried out under search memos Ext.PW6/J to Ex.PW6/M by PW-9. However, no incriminating material was recovered from their possession. During the search of the vehicle, one polythene bag was found lying under/beneath the front seat occupied by accused Dalbir which contained charas in the shape of balls. On weighment, it was found to be weighing 3.500 kg. However, no incriminating material was recovered from their possession. During the search of the vehicle, one polythene bag was found lying under/beneath the front seat occupied by accused Dalbir which contained charas in the shape of balls. On weighment, it was found to be weighing 3.500 kg. The official witnesses have deposed that two samples each weighing 25 grams were separated which were packed and marked as S.1 and S.2 and sealed with seal bearing impression X. The residual charas weighing 3.450 kgs has been deposed by the officials witnesses to have been put back into the same polythene bag and sealed with seal impression X. NCB form Ex.PW4/D in triplicate was filled in by PW-9 on the spot. Specimens of seal impression have been deposed by the official witnesses to have been handed over by PW- 9 to H.C. Pushap Dev. The case property has been deposed by the official witnesses to have been taken into possession vide seizure memo Ex.PW6/O. Rukka Ex.PW4/A has been deposed by the official witnesses to have been scribed by PW-9 and sent to Police Station Ani through C. Bhoop Singh. The site plan, Ex.PW9/B has been deposed by the prosecution witnesses to have been prepared by PW-9. 11. PW-1 Chande Ram had delivered special report to Sh. Bhan Singh, SDPO Ani on 10.06.2009 at 4.45 p.m. which was handed over to him by PW-9 ASI Luder Singh. ASI Prem Lal, PW-2 brought the case property along with the report of chemical examiner Ex.PW2/A from FSL Junga on 4.7.2009 and deposited the same with MHC Pune Ram in the Malkhana at Police Station Ani. PW-3 ASI Sohan Lal remained posted as Reader to SDPO, Ani during the year 2009. On 10.06.2009 Sh. Bhajan Singh, SDPO, Ani handed over Special Report Ex.PW3/B to him which was entered by him in the receipt register, abstract whereof is Ex.PW3/A. PW-4, H.C. Anoop Kumar remained posted as MHC in P.S. Ani during the year 2009. He has stated that on 9.6.2005, he registered FIR Ex.PW4/B on the basis of rukka Ex.PW4/A sent by PW-9, ASI Luder Singh from the spot through PW-8 HHC Bhoop Singh. On the same day at about 12.40 p.m., PW9 ASI Luder Singh deposited the case property consisting of two sample parcels and one parcel containing the bulk which were sealed with seal bearing impression of ‘X’. On the same day at about 12.40 p.m., PW9 ASI Luder Singh deposited the case property consisting of two sample parcels and one parcel containing the bulk which were sealed with seal bearing impression of ‘X’. He resealed the case property with seal bearing impression ‘H’ and made entries in the Malkhana Register, the extract of which is Ex.PW4/F. PW-5 SI Gurbachan Singh, on completion of the investigation, prepared the challan in this case. 12. Even though the prosecution witnesses have deposed in tandem and in harmony qua each of the links in the chain of circumstances commencing from the proceedings relating to search, seizure and recovery till the consummate link comprised in the rendition of an opinion by the FSL on the specimen parcels sent to it for analysis, hence, portraying proof of unbroken and unsevered links, in the entire chain of the circumstances, therefore, it is argued that when the prosecution case stands established, it would be legally unwise for this Court to acquit the accused. Besides, it is canvassed that when the testimonies of the official witnesses, unravel the fact of theirs being bereft of any inter-se or intra-se contradictions hence, consequently they too enjoy credibility. 13. The accused persons as unraveled by their respective addresses belong to District Kaithal in the State of Haryana. Charas weighing 3.500 kg was recovered from underneath the front seat occupied by accused Dalbir Singh in vehicle bearing No. HR-6N- 9076, whereas the other accused were too, occupying the said vehicle, obviously then criminal liability is to be fastened to each of the accused while traveling together in the vehicle from which the contraband was recovered. In other words, the factum of recovery of charas weighing 3.500 kg from beneath the front seat occupied by accused Dalbir Singh besides fastening criminal liability upon accused Dalbir Singh, also fastens conjoint and vicarious liability upon the other accused, who were also occupying and traveling in the vehicle from which the seizure was made. In other words, the factum of recovery of charas weighing 3.500 kg from beneath the front seat occupied by accused Dalbir Singh besides fastening criminal liability upon accused Dalbir Singh, also fastens conjoint and vicarious liability upon the other accused, who were also occupying and traveling in the vehicle from which the seizure was made. For each of the accused to be held to be not in exclusive and conscious possession thereof, there had to be on record overwhelming and potent evidence displaying the factum that their respective criminal liability stands exculpated especially, given the fact that the driver, named, Kanwar Singh was plying the vehicle for hire and reward, hence, given the capacity aforesaid in which he was plying it, further hence, his being unaware of and his having remained un-awakened qua the fact of the other accused carrying with them contraband as seized from the vehicle, hence, the occupants therein alone remained consciously aware of the factum of its being carried in the vehicle driven by him on behalf of its owner for hire and reward, concomitantly, no vicarious criminal liability along with the occupants therein is to be fastened upon him. Nonetheless, the registration certificate of the vehicle firmly ousts the factum of the vehicle having been driven by accused Kanwar Singh for hire and reward. The factum of the registration certificate of the vehicle depicting the vehicle being registered as a private vehicle and not as a vehicle for carrying passengers for hire and reward underscores an inference especially when each of the occupants, who at the relevant time occupied it belong to District Kaithal in the State of Harayana to which State the accused Kanwar Singh also belongs, that hence, each of them knew the driver Kanwar Singh also. Consequently, if each of the occupants knew each other and the driver/accused Kanwar Singh also knew the occupants, the apt and natural inference which sprouts is that the contraband as found in the vehicle was being carried in it with each of the person occupying the vehicle as also the accused/driver being aware of the factum of its being carried by each of the accused as also each being aware of its being carried in it. Resultantly, then neither accused Kanwar Singh can contend that with his being unaware of the identities of the other persons occupying his vehicle, his having put them aboard the vehicle as passengers for hire and reward, no inculpatory vicarious role with other accused can be imputed to him nor also the contention advanced on behalf of each of other accused that they were unaware of their respective identities, hence, vicarious criminal liability for accused Dalbir Singh, while charas weighing 3.500 kg having been found beneath his seat, cannot be imputed to them, also necessitates its being discarded especially when the reasons advanced hereinabove efficaciously repulse it. Therefore, it has to be convincingly held that the prosecution has been able to prove that each of the accused were vicariously liable for theirs being found in exclusive and conscious possession of 3.500 kg of charas with it being carried in vehicle No. HR-6N-9076 in the manner as enunciated by the prosecution witnesses. 14. The learned counsel appearing for the accused/appellants have contended that the factum of non association of independent witnesses in the apposite proceedings relating to search, seizure and recovery of contraband in the manner as deposed by the prosecution witnesses cannot render them to hold sway besides, they do not enjoy probative tenacity in the absence of PW-9 ASI Luder Singh having not associated independent witnesses in the apposite proceedings. However, the factum of non association of independent witnesses would not outweigh the probative sinew of the testimonies of the official witnesses, who have deposed in unison and harmony qua the factum of the apposite proceedings having been carried out in the legally enjoined manner. Moreover, when the entire link in the chain of circumstances commencing from the commencement of the proceedings of search, seizure and recovery at the site of occurrence till the rendition of an opinion by the FSL, Junga on the sample sent to it for analysis has remained unbroken and unsevered besides, having been proved by cogent and unflinching evidence. Consequently, the effect, if any, of non-association of independent witnesses by the Investigating officer in the apposite proceeding wanes as well as fades. Consequently, the effect, if any, of non-association of independent witnesses by the Investigating officer in the apposite proceeding wanes as well as fades. Even otherwise, assuming that the Investigating Officer had not associated independent witnesses in the apposite proceedings, such omission may eclipse the apposite proceedings, only when there was overwhelming and satisfactory evidence existing in the testimonies of the official witnesses portraying the factum that despite availability of independent witnesses, they were omitted to be joined in the apposite proceedings by the Investigating Officer. However, a close reading of the testimony of PW-6 unearths the factum of the apposite proceedings having commenced at an isolated place and at a time when the association of independent witnesses could not be solicited besides, with there being also an admission in the cross-examination of PW-6 of a bus having crossed the naka point prior to theirs commencing the search of the vehicle occupied by the accused from which the recovery of charas was effected, firmly scores an apt inference that at a time contemporaneous to the holding or conducting of apposite proceedings qua the vehicle occupied by the accused from which the recovery of charas was effected neither any vehicle had crossed that place nor hence independent witnesses were available, for theirs being joined by the Investigating Officer in the apposite proceedings. Consequently, the Investigating Officer cannot be faulted for his having despite availability of independent witnesses omitted to join them in the apposite proceedings. 15. On a formation of the aforesaid conclusion, the concomitant deduction is that the prosecution has been able to prove the guilt of both the accused. 16. In view of above, we find that the findings of 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. Accordingly, all the appeals are dismissed being devoid of any merit and the judgment rendered by the learned trial Court is affirmed and maintained. Records of the learned trial Court be sent down forthwith.