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Himachal Pradesh High Court · body

2015 DIGILAW 378 (HP)

Prem Chand v. State of H. P.

2015-04-21

RAJIV SHARMA, SURESHWAR THAKUR

body2015
JUDGMENT Sureshwar Thakur, J. The instant appeal is directed against the judgment, rendered on 4.4.2012, by the learned Special Judge, Kullu, H.P., in Sessions trial No. 1 of 2011, whereby, the learned trial Court convicted and sentenced the accused/appellant Prem Chand to undergo rigorous imprisonment for a period of ten years and to pay a fine in a sum of Rs.1,00,000/- (One Lac) and in default to further undergo imprisonment for a period of one year for commission of offence under Section 20 of Narcotic Drugs and Psychotropic Substances Act, 1985. 2. The facts, in brief, are that on 8.10.2010, at about 1.40 p.m. at place Gahanu Ban, PW-9 SI Rattan Singh alognwith ASI Rajesh Kumar, PW-6 Ram Nath, PW-8 HC Devinder, PW-7 C Pargeen and C Naresh signaled to stop the vehicle bearing registration No. HP- 01K-1865 coming from Chong side, but the driver tried to run away from that place, whereupon PW-9 with the help of other police officials stopped the vehicle and found one driver and one another person sitting in the cab. PW-9 and other police officials disclosed their identity to the accused persons, on which they got perplexed. The place was isolated therefore no independent witnesses could be associated. PW-9 associated ASI Rajesh and PW-6 ASI Ram Nath and conducted the search of the cab. During checking in the presence of witnesses, five packets wrapped in khaki coloured cello tape were found kept in pink coloured handbag inside the backpack. All the five packets were opened, the same were found to be containing ten packets each having black coloured substance in rectangular shape wrapped in transparent polythene paper. On physical verification, the same was found to be charas. On weighing the contraband, the same was found to be 5 kgs 150 grams. The charas so recovered was put in the same transparent polythene papers in the same manner. The backpack was put in a cloth parcel and sealed with seal impression S at 12 places. Facsimile of seal S Ex. PW-6/A was taken. NCB forms in triplicate Ex. PW-1/B were filled in by the Investigating Officer. Under memo Ex. PW-6/B the case property was taken into possession. Rukka PW-9/B was prepared by the investigating Officer and same was handed over to ASI Ram Nath with a direction to fax the copy to SP State CID Shimla. PW-6/A was taken. NCB forms in triplicate Ex. PW-1/B were filled in by the Investigating Officer. Under memo Ex. PW-6/B the case property was taken into possession. Rukka PW-9/B was prepared by the investigating Officer and same was handed over to ASI Ram Nath with a direction to fax the copy to SP State CID Shimla. PW-6 ASI Ram Nath on return, handed over the receipt comprised in Ex.PW-6/A to PW-8 HC Devender Singh alognwith case property, NCB-1 forms in triplicate, samples of seals, copy of seizure memo and other documents with a direction to transmit the same to PS State CID Bharari for registration of case. PW-9 prepared the site plan comprised in Ex. PW-9/C and recorded the statements of the witnesses. FIR Ex. PW- 1/A was registered. Vide memoes Ex. PW-9/D and PW-9/E the accused persons were apprised about their arrest. Thereafter the cab was handed over to MHC. PW-9 on 9.10.2010 prepared a special report and handed over the same to HC Parveen Kumar with a direction to deliver the same to SP (Crime) CID, Shimla. The same was handed over by C Parveen Kumar to Reader of SP (Crime), the IGP, CID made endorsement with red circle on Ex. PW- 4/A and returned the same to PW-4 ASI Shiv Ram, who after preparing photocopy of the same, handed over the same to C Praveen Kumar. On 9.10.2010 on receipt of case property alongwith relevant documents from HC Devender Kumar Inspector Meenakashi resealed the parcel with seal impression M at 10 places and took facsimile of seal “M” Ex.PW-5/A on cloth piece. He also filled in columns of NCB-1 in triplicate Ex.PW-1/D and deposited the property in Malkhana. On 11.10.2010 PW-1 handed over the parcel, NCB-1 in triplicate and other relevant documents to HC Devender Singh vide RC Ex.PW-1/C with a direction to deposit the same at FSL Junga. On receipt of FSL report Junga comprised in Ex. PW-3/A, it was found that the contraband recovered from the accused was found to be the extract of cannabis and sample of charas. On conclusion of the investigation, into the offences, allegedly committed by the accused, final report under Section 173 of the Code of Criminal Procedure was prepared and presented in the Court. 3. PW-3/A, it was found that the contraband recovered from the accused was found to be the extract of cannabis and sample of charas. On conclusion of the investigation, into the offences, allegedly committed by the accused, final report under Section 173 of the Code of Criminal Procedure was prepared and presented in the Court. 3. The accused persons were charged, for, theirs having committed offence punishable under Sections 20 and 29 of ND&PS Act, by the learned trial Court, to, which they pleaded not guilty and claimed trial. 4. In order to prove its case, the prosecution examined 9 witnesses. On closure of prosecution evidence, the statements of the accused, under Section 313 of the Code of Criminal Procedure, were recorded, in, which they pleaded innocence and claimed false implication. They chose to lead evidence in defence. Accused Chaman Lal has examined four DWs and one witness DW-5 was examined by accused Prem Chand in his defence. 5. On appraisal of the evidence on record, the learned trial Court, returned findings of conviction against the accused/appellant Prem Chand. 6. The accused/appellant is aggrieved by the judgment of conviction, recorded by the learned trial Court. The learned counsel appearing for the appellant/accused has concertedly, and, vigorously contended, that, the findings of conviction recorded by the learned trial Court, are, not based on a proper appreciation of evidence on record, rather, they are sequelled by gross mis-appreciation of the material on record. Hence, he, contends that the findings of conviction, be, reversed by this Court, in, exercise of its appellate jurisdiction, and, be replaced by findings of acquittal. 7. On the other hand, the learned Additional Advocate General, 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, hence, do not necessitate interference, rather merit vindication. 8. 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. 9. 8. 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. 9. 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 un-severed links, in the entire chain of the circumstances, therefore it is argued that when the prosecution case stands established, it would be legally unwise of this court to acquit the accused. Besides, it is convassed 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. 10. The learned counsel for the accused/appellant has contended with vigour that the learned trial Court in having discarded the preeminent fact of the Investigating Officer omitting to join independent witnesses in the apposite proceedings conducted and concluded at the site of occurrence, renders the testimonies of the official witnesses to be ingrained with a legal fallibility, besides their testimonies even if they have deposed in harmony and in consistency with each other hence being may be inspiring are rather rendered un-worthwhile. Nonetheless the aforesaid submission as addressed before this Court by the learned counsel of the accused/appellant gets emaciated in the face of abysmal or dearth of evidence on record, portraying that in the vicinity of the site of occurrence there existed a habitation, the association of whose inhabitants or their participation in the apposite proceedings could have been elicited by the Investigating Officer. For lack of evidence of a habitation existing in close vicinity to the site of occurrence, for reiteration, hence renders rudderless the espousal by the learned counsel for the appellant that omission, if any, on the part of the investigating Officer to solicit or associate independent witnesses in the apposite proceedings concluded and conducted at the site of occurrence was willful or was goaded by an oblique motive or he intended to smother or hide the truth qua the genesis of the prosecution case. The accused Chaman Lal stands acquitted by the learned trial Court on the score of his having occupied cab bearing No. HP-01K-1865 as a gratuitous passenger. However, the driver of cab bearing the number aforesaid stands convicted by the learned trial Court. The learned counsel for the Convict/appellant concerts to negate the findings qua the capacity in which accused Chaman Lal was occupying it, inasmuch, as, he in the impugned judgment has been concluded, while exculpating him, to be occupying it as a gratuitous passenger, by adverting to receipt Ex. DW-5/A, for canvassing hence, the view that accused Chaman Lal was occupying it as a passenger for hire/reward, on strength thereof the learned counsel for the convict/appellant herein further canvasses that bag Ex. P-3 from which articles of contraband were recovered rather belonged to accused Chaman Lal and not to Prem Chand. However, the mere factum of production of receipt Ex. DW-5/A, at the instance of DW-5 does not either falsify the reasoning as afforded by the learned trial Court qua accused Chaman Lal not occupying the cab as a gratuitous passenger nor does it facilitate the espousal by the counsel for the accused/appellant that bag Ex. P-3 from which items of contraband were recovered belonged to accused Chaman Lal. The reason for concluding so as aptly done by the learned trial Court is the existence of an admission in his cross-examination of his being unaware as to who had booked his cab at the relevant date, besides an admission that he had issued a receipt at the instance of the driver of the taxi rather gives latitude to an inference as tenably drawn by the learned trial Court that hence, the accused has been unable to, by relying upon the deposition of DW-5 who produced DW-5/A clinchingly and flinchingly prove the fact that it was accused Chaman Lal who had booked the cab. Aggravating vigour to the aforesaid fact is afforded by the fact of no receipt in proof of accused Chaman Lal occupying the cab bearing the number aforesaid in a non-gratuitous capacity having been recovered from the possession of accused Chaman Lal, even though it is apparent on a reading of testimony of DW-5 that 3 receipts for hiring a cab are prepared, one of which, is delivered to the passenger. In face thereof a receipt displaying the factum of Chaman Lal having hired the cab driven by the accused Prem Chand ought to have been recovered from the possession of accused Chaman Lal, yet there being no evidence portraying the factum of a copy of receipt Ex. DW-5/A having been recovered from the possession of accused Chaman Lal, fosters a conclusion that the defence as propounded by accused Chaman Lal existing in the testimonies of DWs 2 and 4 portraying the factum of his disowning the articles of contraband in their presence when the vehicle driven by accused Prem Chand was stopped by some persons in civil dress, besides theirs having noticed accused Chaman Lal to be taking a lift in the vehicle hence garners full vigour and strength. Consequently, it ousts the guilt of accused Chaman Lal on the contrary it espouses as proven for the testimonies of the official witnesses the guilt of accused/convict Prem chand. 11. Moreover impetus to the aforesaid conclusion of accused Chaman Lal not occupying the cab driven by accused Prem Chand in the capacity of a passenger for hire/reward rather in the capacity of a gratuitous passenger, is lent by the factum of accused/convict/appellant Prem Chand when having moved an application under Section 457 Cr.P.C comprised in Ex. DW-3/A for release of the impounded vehicle driven by him, having omitted to canvass therein the fact that the vehicle at the relevant stage was hired by accused Chaman Lal. Omission on the part of accused/convict/appellant Prem Chand to, at that stage, portray a defence displaying the factum of accused Chaman Lal occupying it as a passenger for hire/reward, as such, besides connoting his admission of chaman Lal as deposed by DWs 2 and 4 occupying it as a gratuitous passenger, also manifests an admission that the bag from which items of contraband were recovered was not owned by accused Chaman Lal rather was owned by accused Prem Chand. 12. A wholesome analysis of the evidence on record portrays that the appreciation of evidence as done by the learned trial Court does not suffer from any perversity and absurdity nor it can be said that the learned trial Court in recording findings of conviction has committed any legal misdemeanor, in as much, as, it having mis-appreciated the evidence on record or omitted to appreciate relevant and admissible evidence. In aftermath this Court does not deem it fit and appropriate that the findings of conviction recorded by the learned trial Court do not merit interference. 13. In view of above discussion, we find no merit in this appeal, which is accordingly dismissed, and, the judgment of the learned trial Court is affirmed. Record of the learned trial Court be sent back forthwith.