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Himachal Pradesh High Court · body

2015 DIGILAW 920 (HP)

Nek Ram v. State of Himachal Pradesh

2015-07-21

P.S.RANA, SANJAY KAROL

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JUDGMENT : Sanjay Karol, J. Appellant-convict Nek Ram, hereinafter referred to as the accused, has assailed the judgment dated 13.10.2011/20.10.2011, passed by Special Judge, Kullu, Himachal Pradesh, in Sessions Trial No.13 of 2011, titled as State of H.P. v. Nek Ram, whereby he stands convicted of the offence punishable under the provisions of Section 20 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 thereof, to further undergo simple imprisonment for a period of one year. 2. It is the case of prosecution that on 30.11.2010, police party, comprising of Tej Ram (PW-9), Constable Rajneesh Kumar (PW-1), HHC Tek Chand and Baldev Singh, was on patrol duty, in connection with detection of crime. Police had set up a Naaka. At about 4 a.m., motorcycle bearing No. HP-34A-6976, driven by the accused, was stopped by the Police Party for checking. Documents of the vehicle were checked and accused disclosed his name as Nek Ram. On suspicion, rucksack (Ex. P-2) carried by the accused was searched in the presence of police officials present on the spot. In the rucksack (Ex. P-2), there was a white coloured bag (Ex. P- 4), which contained Charas (Ex.P-5), in the shape of Chapattis, rectangles and squares, which upon weighment was found to be 4.3 kgs. Ruka (Ex.PW-1/B) was taken by Constable Rajneesh Kumar (PW-1), on the basis of which FIR No.331, dated 1.12.2010 (Ex.PW-1/C), under the provisions of Section 20 of the Act, was registered at Police Station, Sadar (Kullu), District Kullu, Himachal Pradesh. The contraband substance, which was sealed with seal impression 'T', was taken into possession along with the motorcycle, vide memo (Ex. PW-1/A). Accused was also arrested. Tej Ram (PW-9) produced the case property before SHO Onkar Singh (PW-6), who resealed the same with nine seals of seal impression 'A'. Case property was deposited in the Malkhana and MHC Ram Krishan made entry (Ex.PW-2/C). Contraband substance was taken by Constable Sonu (PW-3) and deposited at the Forensic Science Laboratory, Junga. Report of the Laboratory (Ex.PW-5/A) was taken on record by the police. Superior Officers were also informed of the incident, as Special Report (Ex.PW-4/A) so prepared was received by HC Harbans Kumar (PW-4) in the Office of the Superintendent of Police. Contraband substance was taken by Constable Sonu (PW-3) and deposited at the Forensic Science Laboratory, Junga. Report of the Laboratory (Ex.PW-5/A) was taken on record by the police. Superior Officers were also informed of the incident, as Special Report (Ex.PW-4/A) so prepared was received by HC Harbans Kumar (PW-4) in the Office of the Superintendent of Police. 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 am innocent and implicated falsely to save Rajesh Kumar owner of the Motor Cycle." 5. Based on the testimonies of witnesses and the material on record, trial Court convicted the accused of the charged offence and sentenced him as aforesaid. Hence, the present appeal by the accused. 6. We have heard Mr. Amit Singh Chandel, learned counsel for the accused, as also Mr. Ashok Chaudhary and Mr. V.S. Chauhan, learned Additional Advocates General, on behalf of the State. We have also minutely examined the testimonies of the witnesses and other documentary evidence so placed on record by the prosecution. Having done so, we are of the considered view that no case for interference is made out at all. We find that the judgment rendered by the trial Court is based on complete, correct and proper appreciation of evidence (documentary and ocular) so placed on record. There is neither any illegality/infirmity nor any perversity with the same, resulting into miscarriage of justice. 7. We are of the considered view that the defence taken by the accused cannot be said to have been probablized. In Court, Rajesh Kumar (PW-8), owner of the vehicle, has disputed sale of the motorcycle to the accused. According to the witness, the motorcycle was stolen on 28.11.2010. The witness was declared hostile and cross-examined by the Public Prosecutor. We find that despite such conduct and version, accused cannot be benefited in any manner. In Court, Rajesh Kumar (PW-8), owner of the vehicle, has disputed sale of the motorcycle to the accused. According to the witness, the motorcycle was stolen on 28.11.2010. The witness was declared hostile and cross-examined by the Public Prosecutor. We find that despite such conduct and version, accused cannot be benefited in any manner. This we say so for the reason that prosecution has been able to establish, by leading evidence, worthy of credence, that (a) on the spot accused was found driving the motorcycle, (b) recovery was effected not from the vehicle but from the rucksack carried by the accused. So the issue of ownership of Motorcycle pales into insignificance. 8. Tej Ram (PW-9) was heading the police party. In Court, he categorically states that before leaving Police Station, Kullu, entry of departure was so recorded. At about 4 p.m. (here, there appears to be a typographical error, as it should be 4 a.m.), at a place known as Balura- Ghera bridge, motorcycle bearing registration No. HP- 34A-6976 was stopped. Papers of the vehicle were checked. On suspicion, rucksack carried by the accused was checked, from which a white coloured cloth bag was recovered. On opening the bag, Charas, in the shape of Chapatti, rectangles and squares, was found, which was weighed and found to be 4.3 kgs. It was sealed with nine seals of seal impression 'T'; NCB form (Ex. PW-2/E) was filled up in triplicate; sample of the seal was taken on a cloth (Ex. PW-1/D); the vehicle along with documents and key was taken into possession vide memo (Ex. PW-1/A); ruka (Ex.PW-1/B) was sent to the Police Station through Constable Rajneesh Kumar (PW-1), on the basis of which FIR (Ex. PW-1/C) was registered. During investigation, he recorded statement (Ex. PW9/B) of Rajneesh. The accused was arrested vide Memo (Ex. PW-1/E). Thereafter, personal search of the accused was conducted vide Memo (Ex.PW-1/F). After reaching the Police Station, case property was entrusted to SHO Onkar Singh (PW-6). His version is clear, cogent and convincing. 9. Version of this witness stands corroborated by Constable Rajneesh Kumar (PW-1), who further states that on the basis of ruka, so carried by him, FIR (Ex.PW- 1/C) was registered by SHO Onkar Singh. He has proved facsimile of seal (Ex. PW-1/D), so entrusted to him, on the spot. 10. His version is clear, cogent and convincing. 9. Version of this witness stands corroborated by Constable Rajneesh Kumar (PW-1), who further states that on the basis of ruka, so carried by him, FIR (Ex.PW- 1/C) was registered by SHO Onkar Singh. He has proved facsimile of seal (Ex. PW-1/D), so entrusted to him, on the spot. 10. We shall now deal with the contradictions pointed out in the testimonies of these witnesses. 11. Whereas Constable Rajneesh Kumar states that the motorcycle was intercepted at 4 a.m., Tej Ram records the time to be 4 p.m. Significantly, the Court below has not dealt with this issue. In our considered view, it is a mere typographical error. In the testimony of Tej Ram word "p.m." ought to have been typed as "a.m.". This we say so for the reason that Ruka, prepared by Tej Ram, records the time to be 5.45 a.m., on the basis of which, FIR itself stood registered at 7.15 a.m. Hence, there is no contradiction at all. 12. Second contradiction pointed out is with regard to the manner of search. Tej Ram states that first personal search of the accused was conducted and only thereafter rucksack was searched, whereas from the version of Rajneesh Kumar, it appears that personal search of the accused was conducted after registration of the FIR. The contradiction, in our considered view, is not fatal to the prosecution case. Affirmatively, it is the case of prosecution that recovery was effected from the rucksack and not from the person of the accused. There is no search memo on record. Police may have defaulted in complying with the formalities before conducting the personal search of the accused, but then in the absence of any recovery from the person of the accused, recovery so effected by the police from the bag, cannot be said to be illegal. Loss of memory with the passage of time can be there and no benefit thereof can be given to the accused. Contemporaneous documents do not make the testimony of the Investigating Officer to be contradictory. 13. The third contradiction pointed out is with regard to the shape of the contraband substance, which we find to be none. Tej Ram states that the substance recovered was in the shape of Chapattis, rectangles and squares, which stands corroborated by the documentary evidence, i.e. Ruka (Ex.PW-1/B). Also, Rajneesh Kumar corroborates such version. 13. The third contradiction pointed out is with regard to the shape of the contraband substance, which we find to be none. Tej Ram states that the substance recovered was in the shape of Chapattis, rectangles and squares, which stands corroborated by the documentary evidence, i.e. Ruka (Ex.PW-1/B). Also, Rajneesh Kumar corroborates such version. Subsequently, this witness refers to the Charas to be in the shape of balls and rectangles. Significantly, this part of the testimony is with regard to the case property at the time it was produced in the Court and not at the time of its seizure. With the passage of time, the contraband substance may have changed its shape to that of a ball. The seals remained intact and all the relevant witnesses have deposed that so long as the property remained with them, it was not only kept in safe custody but also not tampered with. 14. There is no dispute on the material aspect of the police party having set up a naaka; intercepted the accused; having conducted the search and seizure operations; and recovered the contraband substance, weighing 4.3 kgs from the conscious possession of the accused. This fact stands duly established on record through the testimonies of Rajneesh Kumar and Tej Ram. 15. Act creates legal fiction and presumes the person in possession of illicit articles to have committed the offence in case he fails to account for the possession satisfactorily. Possession is a mental state and Section 35 of the Act gives statutory recognition to culpable mental state. It includes knowledge of fact. The possession, therefore, has to be understood in the context thereof and when tested on this anvil, we find that the accused has not been able to account for satisfactorily possession of Charas. Once possession is established, the Court can presume that the accused had culpable mental state and had committed the offence. 16. In the instant case, the accused has filed to discharge such burden. 17. Even by way of link evidence, we find the prosecution to have established its case beyond reasonable doubt. Tej Ram entrusted the case property to SHO Onkar Singh, who resealed the same with his seal impression 'A'. The sample seal was produced in the Court as Ex.PW-6/B. MHC Ram Krishan (PW-2) has proved on record the Malkhana register (Ex.PW-2/C), recording entry of the contraband substance. Tej Ram entrusted the case property to SHO Onkar Singh, who resealed the same with his seal impression 'A'. The sample seal was produced in the Court as Ex.PW-6/B. MHC Ram Krishan (PW-2) has proved on record the Malkhana register (Ex.PW-2/C), recording entry of the contraband substance. NCB form, copy of the FIR along with the Road Certificate (Ex.PW- 2/D) were sent through Constable Sonu (PW-3), for chemical analysis. These police officials have clarified that so long as the case property remained with them, it was not tampered with and kept in safe custody. 18. Shri Kapil Sharma (PW-5), Assistant Director and Assistant Chemical Examiner, NDPS Division, State Forensic Science Laboratory, Junga, has inter alia proved on record report (Ex.PW-5/A), recording the contraband substance to be Charas. 19. That police had complied with the statutory provisions of informing the Superior Officer stands established through the testimony of HC Harbans Kumar (PW-4), who received the Special Report (Ex.PW-4/A), in the Additional Superintendent of Police, Kullu. 20. Thus, 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. 21. For all the aforesaid reasons, we find no reason to interfere with the well reasoned 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 applications, if any.