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Himachal Pradesh High Court · body

2016 DIGILAW 1084 (HP)

Pardeep Kumar v. State of Himachal Pradesh

2016-06-17

RAJIV SHARMA

body2016
JUDGMENT : Rajiv Sharma, Judge: The instant appeal has been filed against Judgment dated 1.10.2015 rendered by the learned Special Judge-III, Solan, District Solan (HP) in Sessions Trial No. 9FTC/7 of 2013, whereby appellant-accused (hereinafter referred to as 'accused' for convenience sake), who was charged with and tried for offence under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as 'Act' for convenience sake), has been convicted and sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.1.00 Lakh and in default of payment of fine, to further undergo simple imprisonment for one year. 2. Case of the prosecution, in a nutshell, is that on 10.2.2013, HC Ambi Lal (PW-10), IO SIU, Solan alongwith HC Ajay Kumar, Constable Bhupinder Singh, Constable Amit Kumar, Constable Rohit Kumar was on patrolling and traffic checking duty towards Shamti, Jatoli and Oachhghat. At about 11.00 AM, a private bus i.e. Bhagnal Coach came from Rajgarh side and it was signalled to stop. The bus, bearing registration No. HP-64-4597, was enroute Liyat-Giripul-Solan. Police entered the bus. Passengers were advised to keep their luggage with them. Police started checking luggage. When they reached seat No. 17, a person was found sitting with a micron packet in his lap. It was checked and opened. It contained his clothes, two micron small packets tied with thread. These micron packets were opened. Black coloured substance in the form of balls and sticks was recovered. It was found to be cannabis. It weighed 464 grams. Sealing proceedings were completed at the spot. Pullinda was sealed with three seal impressions of seal ‘A’. sample of seal was taken on piece of cloth. NCB form in triplicate was filled in. impression of seal ‘A’ was put on the same. Seal after use was handed over to Baldev Kumar. Rukka PW-10/C was sent through Constable Amit Kumar to the Police Station, Sadar, Solan for the registration of FIR. FIR Ext. PW- 6/A was registered. Pullinda was resealed by ASI Krishan Chand (PW-11) with six seal impressions of seal ‘T’. Case property was sent to FSL Junga through Constable Sudhir Sharma. Report of FSL is Ext. PX. Investigation was completed. Challan was put up in the Court after completing all the codal formalities. 3. Prosecution has examined as many as eleven witnesses. Accused was also examined under Section 313 CrPC. He pleaded innocence. Case property was sent to FSL Junga through Constable Sudhir Sharma. Report of FSL is Ext. PX. Investigation was completed. Challan was put up in the Court after completing all the codal formalities. 3. Prosecution has examined as many as eleven witnesses. Accused was also examined under Section 313 CrPC. He pleaded innocence. Learned trial Court convicted the accused as noticed above. Hence, this appeal. 4. Mr. Vijay Sharma and Mr. Abhishek Kaushik, Advocates have vehemently argued that the prosecution has failed to prove its case against the accused. 5. Mr. Neeraj K. Sharma, Deputy Advocate General has supported Judgment dated 1.10.2015. 6. PW-2 Madan Lal testified that on 10.2.2013, he was coming to Solan from his village in private bus. About 25-30 persons were travelling in the bus. At about 11.00 AM, the bus was intercepted at Jatoli by the police. Police personnel entered the bus and directed the passengers to remain on their seats as they intended to carry out search. Search was started. During search, it was told that Charas had been recovered from the accused. Police obtained his signatures on 4-5 papers. Charas was weighed in his presence. It weighed 464 grams. Charas was put into white bag. His signatures were obtained. He was declared hostile and cross-examined by the learned Public Prosecutor. In his cross-examination by the learned Public Prosecutor, he has admitted that the accused was holding a micron bag which contained clothes and two other bags which were tied with woolen thread. He also admitted that these two bags contained stick and round shaped black substance stated to be Charas. He also admitted that thereafter Charas was put back in the same bags and these bags were wrapped with a cloth which was sealed by the police with three seals of seal impression ‘A’. He had appended his signatures on the parcel as well as Ext. PW-2/A. He also admitted his signatures on parcel Ext. P-4. Ext.PW-2/B was also signed by him. He also admitted that seal after use was handed over to Baldev. In his cross-examination by the learned defence counsel, he testified that about 2-2 ½ hours were consumed at the spot in conducting necessary proceedings. Vehicle was intercepted near rain shelter Jatoli Bus Stop. 7. HHC Narender Parkash (PW-5) deposed that he was posted as MHC Malkhana in Police Station, Sadar, Solan. In his cross-examination by the learned defence counsel, he testified that about 2-2 ½ hours were consumed at the spot in conducting necessary proceedings. Vehicle was intercepted near rain shelter Jatoli Bus Stop. 7. HHC Narender Parkash (PW-5) deposed that he was posted as MHC Malkhana in Police Station, Sadar, Solan. On 10.2.2013 at about 6.25 PM, ASI Krishan Chand handed over three seals of seal impression ‘A’ and six seals of seal impression ‘T’ alongwith seal impression, NCB form in triplicate and micron bag Ext. P-9, containing shirt Ext. P-11 and jean Ext. P-10. Contraband was sent by him to the FSL Junga on 11.2.2013 through Constable Sudhir Sharma. He deposited the contraband in FSL and returned the RC to him which contained receipt of FSL. He made necessary entries in the Malkhana register at the time of receipt and dispatch of articles. 8. PW-7 Constable Sudhir Sharma has taken the case property to FSL Junga. 9. PW-8 Constable Amit Kumar is the official witness. He testified the manner in which bus was intercepted at Jatoli and accused was found sitting on seat No. 17. He was holding a light white coloured micron bag in his lap. Bag was open. It contained Charas. Charas weighed 464 grams. Search, seizure and sampling proceedings were completed at the spot. Rukka mark ‘X’ was handed over to him for carrying to the Police Station, Sadar, Solan. He took it to Police Station, Sadar, Solan. In his cross-examination, he testified that the bus was intercepted at bus stop. However, there was no rain shelter adjacent to the bust stop. Search was effected from both sides of the bus. 10. PW-9 Baldev Kumar was the conductor of the bus. He testified that on 10.2.2013, he was working as a conductor on bus bearing registration No. HP-64-4597. Tarun Kumar was driver of the bus. They proceeded from Pulwahal to Solan at 6.30 AM. At about 1100 AM when they arrived at Jatoli, the police intercepted the bus. About 30 passengers were travelling in the bus. Accused was also travelling in the bus and was sitting on seat No. 17. Police entered the bus and directed the passengers to keep their respective luggage with them. All the passengers kept their respective luggage with them. However, a bag was found lying unattended under the seat on which accused was sitting. Bag was checked. It contained Charas. Accused was also travelling in the bus and was sitting on seat No. 17. Police entered the bus and directed the passengers to keep their respective luggage with them. All the passengers kept their respective luggage with them. However, a bag was found lying unattended under the seat on which accused was sitting. Bag was checked. It contained Charas. Charas was weighed. It weighed 464 grams. Charas was put back in the same bag and bag was put in white cloth. His signatures were obtained thereon. He was declared hostile and cross-examined by the learned Public Prosecutor. In his cross-examination by the learned Public Prosecutor, he deposed that he had issued tickets Ext. PW-9/A and Ext. PW-9/B to the accused. He identified his signatures on Ext. P-4, sample seal Ext. PW-2/A and seizure memo Ext. PW-2/B. He has not raised any objection at the time of signing the documents. Accused has not disowned the bag. He and witnesses remained inside the bus throughout the recovery proceedings. 11. PW-10 HC Ambi Lal is also an official witness. He testified the manner in which bus bearing registration No. HP- 64-4597 was intercepted at Jatoli. When he reached seat No. 17, accused was found sitting on the same carrying a micron bag in his lap. Bag was checked. It contained Charas. Search, seizure and sampling proceedings were completed at the spot. He prepared special report Ext. PW-4/B. He handed over parcel Ext. P-4, specimen seal Ext. PW-2/A, NCB form in triplicate to ASI/SHO Krishan Chand, who resealed parcel Ext. P-4 with six seal impressions of ‘T’, specimen impression mark-Y thereof was separately taken and embossed on NCB form. He denied the suggestion that there were many shops towards Solan near Jatoli. He admitted that there was rack inside the bus but no luggage was found therein. Four police personnel have entered the bus. He denied the suggestion that PW-6 Amit Kumar was not present at the spot and he has not carried Rukka from the spot to the Police Station. 12. PW-11 ASI Krishan Chand has resealed the case property with six seal impressions of ‘T’. he also filled in necessary columns of NCB form. 13. Accused was travelling in a Bus bearing registration No. HP-64-4597. He was occupying seat No. 17. PW-8 Amit Kumar and PW-9 Baldev and PW-10 Ambi Lal have categorically stated that accused was occupying seat No. 17. he also filled in necessary columns of NCB form. 13. Accused was travelling in a Bus bearing registration No. HP-64-4597. He was occupying seat No. 17. PW-8 Amit Kumar and PW-9 Baldev and PW-10 Ambi Lal have categorically stated that accused was occupying seat No. 17. He was carrying a white coloured micron bag in his lap. It was opened. It contained 464 grams of Charas. Search, seizure and sampling proceedings were completed at the spot strictly in accordance with law. Case property was produced before PW-11 Krishan Chand. He resealed the same with six seal impressions of ‘T’. FSL report is Ext. PX. PW-2 Madan Lal and PW-9 Baldev, though declared hostile but they have admitted their signatures on the documents. PW-2 Madan Lal, in his cross-examination by the learned Public Prosecutor admitted that accused was carrying a micron bag and when bag was opened, it contained Charas. Similarly, PW-9 Baldev Kumar has admitted in his examination-in-chief that accused was travelling in his bus and was sitting on seat No. 17. He has issued tickets Ext. PW-9/A and Ext. PW-9/B to the accused. PW-9 Baldev Kumar has testified that accused has not disowned the bag. 14. Mr. Vijay Sharma and Mr. Abhishek Kaushik, Advocates have further contended that Section 50 of the Act has not been complied with. However, fact of the matter is that Charas has been recovered from a bag, thus, Section 50 of the Act is not attracted in the instant case. They further argued that accused was not travelling in the bus in question. However, accused has been issued tickets by PW-9 Baldev Kumar. 15. Prosecution has proved its case against the accused beyond doubt. 16. Accordingly, there is no merit in the present appeal and the same is dismissed, so also the pending applications, if any.