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2015 DIGILAW 313 (HP)

Shamshed Ali v. State of H. P.

2015-04-08

P.S.RANA, SANJAY KAROL

body2015
JUDGMENT : Sanjay Karol, J. Appellant-convict Shamshed Ali, hereinafter referred to as the accused, has assailed the judgment dated 19.3.2012, passed by Special Judge, Fast Track Court, Shimla, Himachal Pradesh, in Sessions Trial No.13-S/7 of 2011, titled as State of Himachal Pradesh v. Shamshed Ali, whereby he stands convicted of the offence punishable under the provisions of Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act), and sentenced to undergo rigorous imprisonment for a period of ten years and pay fine of Rs. 1,00,000/-, and in default of payment thereof, to further undergo simple imprisonment for a period of two years. 2. It is the case of prosecution that on 26.1.2011, SI Chaman Bhatia (PW-9), alongwith police party comprising of Constable Surat Singh (PW-2), Constable Virender Sharma (PW-3) and ASI Kishore (PW-7), amongst others, was present at a place known as Fediz Bridge. They were on patrol duty and before departure had recorded such entry (Ex.PW-9/D) at the Police Station. At about 4.30 p.m., police party stopped a motorcycle bearing No.UA-07N-9701 driven by the accused, which was checked and from the dickey, contraband substance wrapped in a polythene packet (Ex. P-2) was recovered. After associating independent witnesses, including Beni Ram (PW-1) a local shopkeeper, the contraband substance, which was weighed and found to be 4.5 kgs, was sealed with seal impression ‘M’. Also, photographs (Ex. PW-7/A1 PW-7/A8) were taken of the proceedings conducted on the spot. Ruka (Ex. PW- 9/B) was sent through Constable Surat Singh, on the basis of which FIR No.4, dated 26.1.2011 (Ex. PW-9/C), under the provisions of Section 20 of the Act, was registered at Police Station, Nerwa, District Shimla, Himachal Pradesh. File was taken back to the spot. Whereafter, further proceedings were completed. Accused was arrested and informed of the grounds of his arrest. Contraband substance alongwith the NCB forms, so filled up in triplicate, was entrusted to MHC Kartar Singh (PW-6), who after entering the same in the Malkhana Register (Ex. PW-6/A), kept it in safe custody. The seized contraband substance was sent, through Constable Naresh Kumar (PW-8), to the Forensic Science Laboratory, Junga. Report of the Chemical Examiner (Ex. PW-9/G) was obtained and taken on record. Special Report (Ex. PW-6/A), kept it in safe custody. The seized contraband substance was sent, through Constable Naresh Kumar (PW-8), to the Forensic Science Laboratory, Junga. Report of the Chemical Examiner (Ex. PW-9/G) was obtained and taken on record. Special Report (Ex. PW-4/A), so prepared by SI Chaman Bhatia, was sent to the Deputy Superintendent of Police, through Constable Ashok Kumar (PW-4), which was received by ASI Parkash Chand (PW-5). With the completion of investigation, which prima facie revealed complicity of the accused in the alleged crime, challan was presented in the Court for trial. 3. Accused was charged for having committed an offence punishable under the provisions of Section 20 of the Act, to which he did not plead guilty and claimed trial. 4. In order to establish its case, prosecution examined as many as nine witnesses and statement of the accused under the provisions of Section 313 of the Code of Criminal Procedure was also recorded, in which he took the following defence: “I was coming to Tieuni. My vehicle was stopped. I was not having pollution control certificate. A police officer bearing one star one SI, demanded money. When I refused, I was taken to P.S. and false case was filed.” Though accused expressed his desire of leading evidence, but eventually decided not to do so. 5. Based on the testimonies of witnesses and the material on record, trial Court convicted the accused and sentenced him as aforesaid. Hence, the present appeal by the accused. 6. Before us, Mr. Manoj Pathak, learned counsel for the accused, has made the following submissions: (i) noncompliance of Sections 42 and 52 of the Act has rendered the prosecution case to be fatal; (ii) testimonies of the prosecution witnesses, uninspiring in confidence, stand mutually contradicted and belied through the testimony of independent witness; (iii) statements of the witnesses were recorded after 4-5 days of the incident, which renders the prosecution case to be doubtful; (iv) also there is doubt with regard to the genuineness of the papers so prepared by the police; (v) non-production of the original seal has rendered the prosecution case to be fatal; and (vi) failure on the part of the prosecution in establishing where the case property was kept, after it was brought back from the laboratory, has further rendered the prosecution case to be doubtful. 7. 7. It is no doubt true that independent witness Beni Ram (PW-1) was declared hostile and cross-examined by the Public Prosecutor. However, his statement makes a very interesting reading. 8. It is a settled proposition of law that merely because a witness has turned hostile, his entire evidence cannot be termed to be unworthy of credence. It is for the Court to consider, whether as a result of contradiction, witness stands fully discredited or part of his testimony can still be believed. If the credit of a witness is not fully shaken, Court can rely upon that part of the testimony which appears to be creditworthy. 9. Their Lordships of the Hon’ble Supreme Court in Ashok alias Dangra Jaiswal vs. State of Madhya Pradesh, (2011) 5 SCC 123 have held that seizure witnesses turning hostile may not be very significant by itself, as it is not an uncommon phenomenon in criminal trials, particularly in cases relating to NDPS Act. 10. Their Lordships of the Hon’ble Supreme Court in Yomeshbhai Pranshankar Bhatt vs. State of Gujarat, (2011) 6 SCC 312 have held that evidence of hostile witness may contain elements of truth and should not be entirely discarded. Their Lordships have held as under: “22. The learned counsel for the appellant further submitted the doctor had not given his written opinion that the deceased was fit enough to give her statement. Though orally, the doctor said so. Relying on this part of the evidence especially the evidence of the husband of the deceased, the learned counsel for the appellant submitted that even though the husband may have been declared hostile, the law relating to appreciation of evidence of hostile witnesses is not to completely discard the evidence given by them. This Court has held that even the evidence given by hostile witness may contain elements of truth. 23. This Court has held in State of U.P. vs. Chetram and others, AIR 1989 SC 1543 , that merely because the witnesses have been declared hostile the entire evidence should not be brushed aside. [See para 13 at page 1548]. Similar view has been expressed by three-judge Bench of this Court in Khujji alias Surendra Tiwari vs. State of Madhya Pradesh, [ AIR 1991 SC 1853 ]. [See para 13 at page 1548]. Similar view has been expressed by three-judge Bench of this Court in Khujji alias Surendra Tiwari vs. State of Madhya Pradesh, [ AIR 1991 SC 1853 ]. At para 6, page 1857 of the report this Court speaking through Justice Ahmadi, as His Lordship then was, after referring to various judgments of this Court laid down that just because the witness turned hostile his entire evidence should not be washed out.” 11. Their Lordships of the Hon’ble Supreme Court in Bhajju alias Karan Singh vs. State of Madhya Pradesh, (2012) 4 SCC 327 have held that evidence of hostile witnesses can also be relied upon by the prosecution to the extent to which it supports the prosecution version of the incident. Their Lordships have held as under: “36. It is settled law that the evidence of hostile witnesses can also be relied upon by the prosecution to the extent to which it supports the prosecution version of the incident. The evidence of such witnesses cannot be treated as washed off the records, it remains admissible in trial and there is no legal bar to base the conviction of the accused upon such testimony, if corroborated by other reliable evidence. Section 154 of the Act enables the Court, in its discretion, to permit the person, who calls a witness, to put any question to him which might be put in cross-examination by the adverse party. 37. The view that the evidence of the witness who has been called and cross-examined by the party with the leave of the court, cannot be believed or disbelieved in part and has to be excluded altogether, is not the correct exposition of law. The Courts may rely upon so much of the testimony which supports the case of the prosecution and is corroborated by other evidence. It is also now a settled cannon of criminal jurisprudence that the part which has been allowed to be cross-examined can also be relied upon by the prosecution. These principles have been encompassed in the judgments of this Court in the cases: (a) Koli Lakhmanbhai Chanabhai v. State of Gujarat (1999) 8 SCC 624 (b) Prithi v. State of Haryana (2010) 8 SCC 536 (c) Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi) (2010) 6 SCC 1 (d) Ramkrushna v. State of Maharashtra (2007) 13 SCC 525 ” 12. Their Lordships of the Hon’ble Supreme Court in Ramesh Harijan vs. State of Uttar Pradesh, (2012) 5 SCC 777 have again reiterated that any portion of evidence consistent with case of prosecution or defence can be relied upon. Their Lordships have further held that seizure/recovery witnesses though turning hostile, but admitting their signatures/thumb impressions on recovery memo, they could be relied on by prosecution. Their Lordships have held as under: “23. It is a settled legal proposition that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross examine him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on a careful scrutiny thereof. (Vide: Bhagwan Singh v. The State of Haryana, AIR 1976 SC 202 ; Rabindra Kumar Dey v. State of Orissa, AIR 1977 SC 170 ; Syad Akbar v. State of Karnataka, AIR 1979 SC 1848 ; and Khujji @ Surendra Tiwari v. State of Madhya Pradesh, AIR 1991 SC 1853 ). 24. In State of U.P. v. Ramesh Prasad Misra & Anr., AIR 1996 SC 2766 , this Court held that evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon. A similar view has been reiterated by this Court in Balu Sonba Shinde v. State of Maharashtra, (2002) 7 SCC 543 ; Gagan Kanojia & Anr. v. State of Punjab, (2006) 13 SCC 516; Radha Mohan Singh @ Lal Saheb & Ors. v. State of U.P., AIR 2006 SC 951 ; Sarvesh Narain Shukla v. Daroga Singh & Ors., AIR 2008 SC 320 ; and Subbu Singh v. State by Public Prosecutor, (2009) 6 SCC 462 . Thus, the law can be summarised to the effect that the evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defence. (See also: C. Muniappan & Ors. Thus, the law can be summarised to the effect that the evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defence. (See also: C. Muniappan & Ors. v. State of Tamil Nadu, AIR 2010 SC 3718; and Himanshu @ Chintu v. State (NCT of Delhi), (2011) 2 SCC 36 )” 13. Applying the aforesaid provisions of law, we proceed to examine his testimony. 14. This witness was extensively cross-examined by the Public Prosecutor and surprisingly we find the witness to have corroborated the testimony of police officials. Witness admits the accused to be present on the spot. He admits that accused was driving the motorcycle, which was stopped by the police for checking. Though he initially did feign ignorance with regard to recovery of the contraband substance from the motorcycle, but later clarified that “it is wrong that this motorcycle was never stopped by the police at Fediz bridge on that day and no recovery was effected from it”. Witness admits to have been associated by the police during investigation and signed his previous statement so recorded by the police. Such statement so proved by the Investigating Officer does record recovery of the contraband substance in his presence. He admits the police party to have taken weights from his shop and the contraband substance, which was weighed in instalments, to be of 4.5 kgs. Incident is of 26.1.2011 and the witness admits that his statement was recorded on the very same day. Thus, in our considered view, this independent witness has fully supported the prosecution case. 15. It is also a settled proposition of law that sole testimony of police official, which if otherwise is reliable, trustworthy, cogent and duly corroborated by other witnesses or admissible evidence, cannot be discarded only on the ground that he is a police official and may be interested in the success of the case. It cannot be stated as a rule that a police officer can or cannot be a sole eyewitness in a criminal case. It will always depend upon the facts of a given case. It cannot be stated as a rule that a police officer can or cannot be a sole eyewitness in a criminal case. It will always depend upon the facts of a given case. If the testimony of such a witness is reliable, trustworthy, cogent and if required duly corroborated by other witnesses or admissible evidences, then the statement of such witness cannot be discarded only on the ground that he is a police officer and may have some interest in success of the case. It is only when his interest in the success of the case is motivated by overzealousness to an extent of his involving innocent people; in that event, no credibility can be attached to the statement of such witness. 16. It is not the law that Police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption applies as much in favour of a police officer as any other person. There is also no rule of law which lays down that no conviction can be recorded on the testimony of a police officer even if such evidence is otherwise reliable and trustworthy. Rule of prudence may require more careful scrutiny of their evidence. If such a presumption is raised against the police officers without exception, it will be an attitude which could neither do credit to the magistracy nor good to the public, it can only bring down the prestige of police administration. 17. Wherever, evidence of a police officer, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and absence of some independent witness of the locality does not in any way affect the creditworthiness of the prosecution case. No infirmity attaches to the testimony of the police officers merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. Such reliable and trustworthy statement can form the basis of conviction. Such reliable and trustworthy statement can form the basis of conviction. [See: Govindaraju alias Govinda v. State by Srirampuram Police Station and another, (2012) 4 SCC 722 ; Tika Ram v. State of Madhya Pradesh, (2007) 15 SCC 760; Girja Prasad v. State of M.P., (2007) 7 SCC 625 ); and Aher Raja Khima v. State of Saurashtra, AIR 1956]. 18. Apex Court in Tahir v. State (Delhi), (1996) 3 SCC 338 , dealing with a similar question, held as under:- "6. ... .In our opinion no infirmity attaches to the testimony of the police officials, merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. The Rule of Prudence, however, only requires a more careful scrutiny of their evidence, since they can be said to be interested in the result of the case projected by them. Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case." 19. In view of the aforesaid statement of law, we shall now examine the testimonies of police officials present on the spot. 20. Conjoint reading of testimonies of such police officials, clearly establishes recovery of the contraband substance, from the conscious possession of the accused. 21. SI Chaman Bhatia (PW-9) categorically states that on 26.1.2011 at 4.30 p.m., he stopped vehicle No. UA- 07N-9701, driven by the accused, for checking. From the dickey, contraband substance, which smelt like Charas was recovered. It was in the shape of sticks. Two independent witnesses, namely Ashwani and Beni Ram were called and joined for further investigation. Scales and weights were brought from the shop of Beni Ram and upon weighment, the contraband substance was found to be 4.5 kgs. ASI Kishore took photographs (Ex.PS-7/A1 to Ex. PW-7/A8 - negatives Ex.PW-7/B1 to PW-7/B7) of the proceedings on the spot. Recovered stuff was wrapped in a cloth parcel and sealed with nine seals of seal impression ‘M’. Sample of the seal was also taken on a piece of cloth, which is Ex. P-5. ASI Kishore took photographs (Ex.PS-7/A1 to Ex. PW-7/A8 - negatives Ex.PW-7/B1 to PW-7/B7) of the proceedings on the spot. Recovered stuff was wrapped in a cloth parcel and sealed with nine seals of seal impression ‘M’. Sample of the seal was also taken on a piece of cloth, which is Ex. P-5. Thereafter, contraband substance was seized vide Memo (Ex.PW-3/A). He himself filled up NCB form (Ex.PW- 9/A) and sent Ruka (Ex. PW-9/B) to the Police Station for registration of the case. Whereafter, accused was arrested and informed of the grounds of arrest. He entrusted the case property to the MHC. 22. Accused could not, through cross-examination, impeach the credit of this witness. Veracity of his testimony cannot be said to be doubtful or shaky in any manner. Witness has explained the signatures on the piece of cloth (Ex.P-5), on which specimen seal impressions were taken, to be in different ink. He clarifies that the accused was informed of all the grounds of arrest, as mentioned in the arrest memo (Ex.PW-2/A). 23. Testimony of this witness stands materially corroborated by Surat Singh (PW-2), Virender Sharma (PW- 3) and Kishore Kumar (PW-7). 24. Surat Singh is categorical that after recovery was effected, he carried Ruka to the Police Station. Virender Sharma is a witness to recovery and has deposed in the manner in which the prosecution wants the Court to believe. Witness categorically denies false implication of the accused or that Charas was actually recovered from some other person. Kishore Kumar has deposed that he took photographs of the proceedings on the spot. 25. Now, in their cross-examination part, limited contradiction we find is with regard to the number of vehicles, which were checked by the police party. But then, this does not render the prosecution witnesses to be doubtful or fatal for the reason that accused himself admits his presence on the spot and his vehicle being stopped by the police for checking. It is not his case that he was stopped at another place or some other police officials. Kishore Kumar admits not to have signed any memo of recovery, but then it is not the case of Chaman Bhatia that it was so done. It is not his case that he was stopped at another place or some other police officials. Kishore Kumar admits not to have signed any memo of recovery, but then it is not the case of Chaman Bhatia that it was so done. The contradiction, minor in nature, is also with regard to exact time which took place on the spot, but then, in the given facts and circumstances, even this does not render the prosecution case to be doubtful. FIR clearly records that the vehicle was searched at 4.30 p.m. On the material aspect of recovery of Charas from the conscious possession accused, there is no contradiction. 26. Thus, it cannot be said that the prosecution witnesses are unreliable and their testimonies are uninspiring in confidence. We find testimonies of the witnesses to be clear, cogent and consistent. Prosecution has been able to prove its case, beyond reasonable doubt. Contraband substance in question was recovered from the conscious possession of the accused. 27. It is a case of chance recovery. Police party had no prior information or intimation of the accused carrying any contraband substance. Also, accused was informed of his grounds of arrest; seized contraband substance was deposited in safe custody and superior officers were informed. As such there is no question of violation of mandatory provisions of Sections 42 and 52 of the Act. 28. Chaman Bhatia is silent as to whom he handed over original seal, but then he has proved the sample of the seal, so taken by him on a piece of cloth (Ex. P-5), which we find to be the very same seal, which was found by the experts at the Forensic Science Laboratory, Junga. Nine seals of seal impression ‘M’ were found intact and tallied with the specimen seal impression. Even the NCB form bears the very same seal impression, reference whereof is also there in the Malkhana Register. 29. Non production of the original seal itself would not render the prosecution case to be doubtful or fatal. 30. Even if statements of the witnesses were recorded 4-5 days after the incident, in the teeth of other overwhelming evidence on record, it would not render the prosecution case to be doubtful. 31. 29. Non production of the original seal itself would not render the prosecution case to be doubtful or fatal. 30. Even if statements of the witnesses were recorded 4-5 days after the incident, in the teeth of other overwhelming evidence on record, it would not render the prosecution case to be doubtful. 31. We find the police to have taken all precautions in informing the superior Officers of having effected recovery of the contraband substance from the conscious possession of the accused, which fact is evident through the testimonies of Ashok Kumar (PW-4) and Parkash Chand (PW-5). 32. It is a settled position of law that where prosecution has been able to establish the accused to be in conscious possession of the contraband substance, Court can presume his mental culpable state and the onus to rebut the presumption is on the accused. (See: Dharampal Singh v. State of Punjab, (2010) 9 SCC 608 ; State of Punjab v. Lakhwinder Singh and another, (2010) 4 SCC 402 ; P.K. Arjunan v. State of Kerala, (2007) 8 SCC 516; and Gopaldas Udhavdas Ahuja and another v. Union of India and others, (2004) 7 SCC 33 . 33. It is true that prosecution has failed to explain where the contraband substance remained for a period of two months (approximately), after it was brought back from the Forensic Science Laboratory. Significantly by then the entire seized parcel stood chemically analyzed. But then, does this fact render the prosecution case to be doubtful or fatal? In our considered opinion, no. MHC Naresh Kumar and Kartar Singh have deposed that so long as the sample remained in their possession it was not tampered with. Report of the Chemical Expert (Ex.PW-9/G) clearly exhibits that nine seals of seal impression ‘M’ were found intact, only where after the parcel was opened up. Its weight was found to be 4.55 kgs. The sealed parcel was analyzed, which was found to be extract of cannabis and sample of Charas. Thus, in this backdrop, where the property remained, till the time of its production before the Court, would be inconsequential. The very sample sealed at the laboratory stands produced before the Court. No explanation is for the period after receipt of the contraband substance from the laboratory. Thus, in this backdrop, where the property remained, till the time of its production before the Court, would be inconsequential. The very sample sealed at the laboratory stands produced before the Court. No explanation is for the period after receipt of the contraband substance from the laboratory. Significantly, by that time, property stood chemically analyzed and as such this fact would, in no manner render the prosecution case to be doubtful or fatal. Yes, police officials have been negligent to this extent. It may be a case of tardy investigation. But certainly does not render the prosecution case, on material aspect to be false or doubtful. 34. In our considered view, prosecution has been able to establish the guilt of the accused, beyond reasonable doubt, by leading clear, cogent, convincing and reliable piece of evidence. 35. For all the aforesaid reasons, we find no reason to interfere with the judgment passed by the trial Court. The Court has fully appreciated the evidence placed on record by the parties. There is no illegality, irregularity, perversity in correct and/or in complete appreciation of the material so placed on record by the parties. Hence, the appeal is dismissed. Appeal stands disposed of, so also pending application(s), if any.