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2016 DIGILAW 1013 (HP)

Rasheed v. State of Himachal Pradesh

2016-06-02

SURESHWAR THAKUR

body2016
JUDGMENT : Sureshwar Thakur, J. The instant appeal is directed against the judgment rendered on 28/31.08.2015 by the learned Special Judge, Ghumarwin, District Bilaspur, Himachal Pradesh in Sessions Case No.25/3 of 2013/12, whereby the appellant stands convicted and sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.10,000/- and in default to undergo simple imprisonment for three months for commission of offence punishable under Section 15 (b) of the NDPS Act. 2. The prosecution story, in brief, is that on 8.4.2012, SI Ram Dass, along with C. Dinesh Kumar, C. Sunil Kumar and HHC Pradeep Kumar were on patrolling duty in an official vehicle bearing No.HP-69A-0310 on NH-21 at Kainchi Mor. While they were moving towards Kainchi Mor, the accused was moving on scooter bearing No.HP-69-0955 ahead of them. The accused on seeing the police started driving the scooter in high speed. At about 7.15 PM on suspicion the said scooter was intercepted and on inquiry the accused disclosed his name as Rashid. All the police officials had given their personal search to the accused vide memo Ext.PW- 6/A but nothing incriminating was recovered from them. Thereafter, the scooter was searched and from inside its front dickey, a transparent plastic bag Ext.P-2 was recovered, which on opening was found to be containing poppy straw Ext.P.3. HHC Pradeep Kumar was sent by SI Ram Dass to bring the scale and weights, who brought the same from the shop of Jaimal Singh. On being weighed, the poppy straw was found to be 1 kg 600 grams in weight along with the plastic bag. The contraband and plastic bag were sealed with seal impression “T”, which bears the signatures of the witnesses and of accused. Ruka Ext.PW-5/A was prepared and on the basis of same FIR Ext.PW-5/B was registered. The site plan Ext.PW-11/A was prepared and the accused was arrested. The samples were sent to SFSL, Junga for chemical examination. The result of chemical analysis Ext.PW-4/A was issued in which it was shown that exhibit stated as poppy straw was a sample of poppy straw. 3. On completion of investigation into the offence allegedly committed by the accused a report under Section 173 Cr.P.C. stood prepared and filed in the competent Court. 4. The accused-appellant herein stood charged for committing an offence punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985. 3. On completion of investigation into the offence allegedly committed by the accused a report under Section 173 Cr.P.C. stood prepared and filed in the competent Court. 4. The accused-appellant herein stood charged for committing an offence punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The accused-appellant pleaded not guilty and claimed trial. 5. In order to prove its case, the prosecution examined 12 witnesses. On closure of prosecution evidence, the statement of the accused under Section 313 of the Code of Criminal Procedure stood recorded wherein he pleaded innocence and claimed false implication. Though he opted to adduce defence evidence, yet he failed to adduce evidence in defence. 6. The accused-appellant stands aggrieved by the judgment of conviction recorded by the learned trial Court. Shri M.S. Kanwar, learned counsel has concerted to vigorously contend before this Court qua the findings of conviction, recorded by the learned trial Court, standing not anvilled on a proper appreciation by it of evidence on record, rather, theirs standing sequelled by gross mis-appreciation of material on record. Hence, he contends qua the findings of conviction being reversed by this Court, in the exercise of its appellate jurisdiction and theirs being replaced by findings of acquittal. 7. On the other hand, the learned Deputy Advocate General appearing for the State has with considerable force and vigour contended qua the findings of conviction recorded by the Court below being based on a mature and balanced appreciation of evidence on record and theirs not necessitating any interference rather meriting 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. The depositions of the official witnesses are bereft of any vice of inter se contradictions comprised in their respective examinations in chief vis-à-vis their respective cross examinations, besides their respective depositions are shorn off any intra se contradictions. Consequently, their testimonies qua the prosecution case are credible besides inspiring. 9. The depositions of the official witnesses are bereft of any vice of inter se contradictions comprised in their respective examinations in chief vis-à-vis their respective cross examinations, besides their respective depositions are shorn off any intra se contradictions. Consequently, their testimonies qua the prosecution case are credible besides inspiring. Moreover, the depositions of the official witnesses qua the recovery of contraband Ext.P.3 effectuated under recovery memo Ext.PW-6/C by the Investigating Officer at the site of occurrence from the exclusive and conscious possession of the accused/appellant stands lent corroborative vigor by the deposition of an independent witness, who stood associated by the Investigating Officer at the site of occurrence at the time contemporaneous to his holding thereat the apposite proceedings. 10. The learned counsel for the appellant has contended with vigor of the independent witness associated by the Investigating Officer in the apposite proceedings held by him at the site of occurrence is vulnerable to skepticism as with an acquiescence emerging in the testimony of PW-10 qua availability of independent witnesses in close proximity to the site whereat the ill-fated occurrence took place, whereupon the Investigating Officer stood also enjoined to associate them also as independent witnesses to the occurrence rather his solitarily associating PW-10 as an independent witness to the apposite proceedings by eliciting his presence from some distance vis-à-vis the site of occurrence, thereupon renders the investigation conducted by the Investigating Officer to be slanted. However, even if apart from PW-10 standing associated by the Investigating Officer as an independent witness in the apposite proceedings held by him at the site of occurrence, participation whereof of PW-10 though stood elicited by him by summoning him from some distance vis-à-vis the site of occurrence, of independent witnesses besides PW-10 being available in immediate proximity of the site of occurrence, nonetheless the aforesaid facet would yet not ingrain his testimony to be tainted nor would render his testimony qua the underscorings occurring therein of his corroborating the version of the official witnesses to be bereft of any credibility predominantly when he has been subjected to a grueling cross examination. Consequently, this Court would not render the testimonies of the official witnesses qua the occurrence to be incredible nor the factum of the omission of the Investigating Officer to associate in exclusion to PW-10 or in addition to him, independent witnesses present at the site of occurrence would beget an inference of the Investigating Officer holding a slanted investigation qua the occurrence. Accordingly, the aforesaid purported omissions/infirmities do not make any deep percolation qua the veracity of the genesis of the prosecution case. 11. The learned counsel for the appellant has contended with vigor of the testimony of PW-1 whereform HHC Pardeep Kumar on 8.4.2012 at about 7.30 PM carried weights and grams of 1 kg., 500 grams and 100 grams, communicative of HHC Pradeep Kumar asking him to purvey to him weights and grams of 1kg., 500 grams and 100 grams, request whereof acceded to by him, sequelling a deduction of the Investigating Officer holding prior information qua the accused holding in his conscious and exclusive possession contraband weighing 1 kg. 600 grams especially when the weight of contraband as stood recovered from the conscious and exclusive possession of the accused carries a similar weight. He contends with the Investigating Officer, hence holding prior information qua the accused holding contraband in his conscious and exclusive possession, it was incumbent upon him to beget compliance with the mandate of Section 41 of the NDPS Act, whereas his palpably omitting to beget compliance thereto renders the entire prosecution version embodied in the FIR to stand stained with a vice of inveracity. However, the aforesaid submission made by the learned counsel for the appellant holds no force, in the face of PW-1 while reneging from his previous statement recorded in writing whereupon at the request of the learned Public Prosecutor concerned, the learned trial Court permitted his standing subjected to cross examination by the learned Public Prosecutor concerned. However, the aforesaid submission made by the learned counsel for the appellant holds no force, in the face of PW-1 while reneging from his previous statement recorded in writing whereupon at the request of the learned Public Prosecutor concerned, the learned trial Court permitted his standing subjected to cross examination by the learned Public Prosecutor concerned. Predominantly the reason for his reneging from his previous statement recorded in writing by the Investigating Officer emanates from his acquiescing in his cross examination held by the learned Public Prosecutor concerned qua the accused holding his residence at a distance of 8 K.M. from his shop, also with his disclosing therein of the accused being a milk vendor concomitantly with PW-1 holding his shop in proximity to the house of the accused/appellant, whereupon the possibility of PW-1 standing influenced by the accused/appellant stands reared, hence PW-1 standing constrained to in his examination in chief make a partisan, influenced communication therein of HHC Pradeep Kumar on visiting his shop requesting him to purvey to him weights and grams comprised of 1 kg., 500 grams and 100 grams, request whereof stood acceded to by him, as a corollary an influenced partisan version by PW-1 qua the facet aforesaid holds no tenacity. Moreover, the deposition aforesaid qua the aforesaid factum comprised in the examination in chief of PW-1 may also not hold any truth given the factum of the Investigating Officer not seizing weights and grams comprised of 1 kg., 500 grams and 100 grams. Only in the event of the Investigating Officer seizing weights and grams carried by HHC Pradeep Kumar from the shop of PW-1, would this Court be constrained to hold an inference of the Investigating Officer holding a prior information qua the accused holding conscious and exclusive possession of contraband, holding of prior Information thereof by him enjoined him to revere the mandatory provisions of Section 41 of the NDPS Act, compliance whereof when stands palpably not begotten would thereupon coax this Court to conclude of the prosecution version in its entirety being liable to be axed. Consequently, it cannot be concluded of the Investigating Officer holding any prior information qua the accused holding conscious and exclusive possession of contraband nor it can be concluded of his standing enjoined to mete adherence to the mandatory provisions of Section 41 of the NDPS Act nor it can be held of his not meting adherence thereto staining the prosecution case. 12. For the reasons which have been recorded hereinabove, this Court holds that the learned trial Court below has appraised the entire evidence on record in a wholesome and harmonious manner apart therefrom the analysis of the material on record by the learned trial Court does not suffer from any perversity or absurdity of mis-appreciation and non appreciation of evidence on record, rather it has aptly appreciated the material available on record. 13. In view of the above, there is no merit in this appeal which is accordingly dismissed. Keeping in view the fact that the appellant/accused is undergoing sentence of imprisonment and has already undergone about nine months of imprisonment, it is just and appropriate to modify the sentence of imprisonment imposed upon him by the learned trial Court to the term already undergone by him. However, he is directed to pay a fine of Rs.10,000/-, as imposed by the learned Court, within a period of one month before it, in default he shall undergo simple imprisonment for two months. He be set at liberty only if he deposits fine of Rs.10,000/- within the period aforesaid before the learned trial Court, if not already deposited. Release warrant be issued accordingly. Record of the learned trial Court be sent back forthwith.