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Himachal Pradesh High Court · body

2016 DIGILAW 1171 (HP)

Chaman Lal v. State of H. P.

2016-06-24

RAJIV SHARMA, VIVEK SINGH THAKUR

body2016
JUDGMENT : Rajiv Sharma, J. 1. This appeal is instituted against the judgment dated 15.2.2016, rendered by the learned Special Judge, Kullu, H.P., in Sessions trial No. 30/2015, whereby the appellant-accused (hereinafter referred to as the accused), who was charged with and tried for offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ND & PS Act), has been convicted and sentenced to undergo rigorous imprisonment for a term of ten years along with fine of Rs.1,00,000/- and in default of payment of fine, the accused was further ordered to undergo simple imprisonment for a period of one year. 2. The case of the prosecution, in a nut shell, is that in the year 2014, SI Basant Singh (PW-7) was posted in Crime Branch, Mandi. On 10.12.2014, as per rapat Ext. PW-3/G, PW-7 SI Basant Singh along with Insp. Chandra, ASI Harsh Kumar and others was present at Jagatsukh Project Road, near Dohangan nullah for patrolling and ‘nakabandi’. At about 3:35 PM, the team of CID police noticed accused coming towards them from the project area side. The accused tried to run away. He was overpowered. The place where the accused was apprehended was isolated. No independent witnesses were present. The I.O. apprised the accused of his legal right to be searched either before the Gazetted Officer or the nearest Magistrate. The accused gave his consent vide memo Ext. PW-1/A. The white coloured “Boru” (gunnysack) being carried by the accused in his right hand was searched. During search, one orange coloured carry bag, on which, inscription of ‘Sagar General Store’ was written, was recovered from it. On opening the orange coloured carry bag, black coloured substance in the shape of ‘chapattis’ and balls as well as sticks was found. It was found to be charas. It weighed 3 kg. 100 grams. The sealing proceedings were completed on the spot. NCB form in triplicate was filled in. The case property was taken into possession vide memo Ext. PW-1/E. The I.O. prepared the rukka Ext. PW-7/A, on the basis of which, FIR Ext. PW-9/A was registered. The case property was produced before SI Mangat Ram, who resealed the same. The case property was deposited in the malkhana. It was sent to the FSL Junga vide RC No. 253/14. The report of the Chemical Analyst is Ext. PX. PW-1/E. The I.O. prepared the rukka Ext. PW-7/A, on the basis of which, FIR Ext. PW-9/A was registered. The case property was produced before SI Mangat Ram, who resealed the same. The case property was deposited in the malkhana. It was sent to the FSL Junga vide RC No. 253/14. The report of the Chemical Analyst is Ext. PX. The investigation was completed and the challan was put up before the Court after completing all the codal formalities. 3. The prosecution, in order to prove its case, has examined as many as nine witnesses. The accused was also examined under Section 313 Cr.P.C. According to him, he was falsely implicated. The learned trial Court convicted the accused, as noticed hereinabove. Hence, this appeal. 4. Mr. Saurav Rattan, Advocate, has vehemently argued that the prosecution has failed to prove its case against the accused. On the other hand, Mr. Neeraj K. Sharma, Dy. AG, for the State, has supported the judgment of the learned trial Court dated 15.2.2016. 5. We have heard the learned counsel for both the sides and have also gone through the judgment and records of the case carefully. 6. PW-1 ASI Naresh Chand testified that he was posted as ASI in CID Sub Unit Banjar for the last two years. On 10.12.2014, Insp. Chandra, HC Om Parkash and other police officers/officials were on patrolling duty at Jagatsukh. At 3:35 PM, one person was noticed coming from project area side towards them on foot. He was carrying one white colour gunny sack in his right hand. On seeing the police party, he turned back. The person got scared. The spot was isolated. He tried to flee away. He was overpowered. On enquiry, the person disclosed his identity. The accused consented for search of his “boru” to be done by the police. The accused was also apprised of his legal right to be searched either before the Gazetted Officer or the nearest Magistrate vide memo Ext. PW-1/A. The ‘boru’ was opened. It contained charas. It weighed 3.100 kgs. The recovered charas was re-packed in the same manner and taken in cloth parcel by putting six seals of letter-A. Sample of seal A was drawn on four cloth pieces. NCB form in triplicate was filled in by the I.O. Facsimile of seal A was taken on the NCB form. He identified Ext. P-1. It weighed 3.100 kgs. The recovered charas was re-packed in the same manner and taken in cloth parcel by putting six seals of letter-A. Sample of seal A was drawn on four cloth pieces. NCB form in triplicate was filled in by the I.O. Facsimile of seal A was taken on the NCB form. He identified Ext. P-1. In his cross-examination, he admitted that project road bifurcates from main road Manali at place Jagatsukh. The vehicles were being usually checked there. Jagatsukh is a big village. They were at a distance of 400 mtrs. from the point where the road bifurcates. They started from the office at 1:00 PM. He also admitted that no efforts were taken by the I.O. to call for independent witnesses from village Jagatsukh and project barrier. It was day time. 7. PW-2 HHC Raj Kumar has corroborated the statement of PW-1 ASI Naresh Chand, the manner in which the accused was apprehended, search, seizure and sealing proceedings were completed on the spot. He handed over the rukka to MHC and case property was handed over to SHO Mangat Ram. In his cross-examination, he admitted that Jagatsukh was big village. They reached at the spot at 3:35 PM. The accused was immediately apprehended. The ‘jamatalashi’ of the accused was done after recovery of the bag. The cloth was cut with the scissors. The parcel was stitched with thread and needle. 8. PW-3 HC Balbir Singh testified that on 11.12.2014, Insp. Mangat Ram handed over to him the case property i.e. one sealed parcel sealed with six seals of A and six seals of S, along with form NCB in triplicate, copy of seizure memo, reseal certificate and sample seals “A” and “S”. He entered the case property at Sr. No. 368 of the malkhana register vide Ext. PW-3/A. He sent the case property to FSL Junga, through HHC Bhagat Singh vide RC No. 253/2014. 9. PW-4 HHC Bhagat Ram testified that on 12.12.2014, MHC Balbir handed over to him one sealed parcel containing six seals of A and six seals of S, along with form NCB in triplicate, copy of seizure memo, reseal certificate and sample seals “A” and “S” vide RC No. 253 of 2014, Ext. PW-3/B for depositing the same with FSL Junga. He deposited the same on the same day under receipt. 10. PW-3/B for depositing the same with FSL Junga. He deposited the same on the same day under receipt. 10. PW-7 SI Basant Singh also deposed the manner in which the accused was apprehended on 10.12.2014 at 3:35 PM. He prepared rukka Ext. PW-7/A. It was sent to the Police Station through HHC Raj Kumar. In his cross-examination, he deposed that there was no prior information with the police of the incident. They went to the spot in private cars. They had laid nakka on the spot. They were in civil dress. The accused was informed vide memo Ext. PW-1/A about search of his ‘boru’ and not of his personal search. He never gave option to the accused to be searched by the police on the spot. He filled in columns 1 to 8 of the NCB form on the spot. 11. PW-9 Insp. Mangat Ram deposed that he was posted as Insp. PS, CID, Bharari. On 11.12.2014, HHC Raj Kumar brought case property i.e. one sealed parcel sealed with six seals of A along with sample seal “A”, form NCB in triplicate and original rukka. He resealed the case property with six seals of impression “S”. He filled in column Nos. 9 to 11 of NCB form Ext. PW-1/D. 12. The case of the prosecution, precisely, is that the accused was seen coming on foot from project area side. He tried to run away. He was overpowered. He was carrying a ‘boru’ in his hands. It contained charas. It was opened. The sealing proceedings were completed on the spot. Rukka Ext. PW-7/A was scribed and sent to the Police Station, on the basis of which, FIR was registered. The case property was produced before PW-9 Insp. Mangat Ram. He resealed the same with six seals of seal “S”. He also filled in column Nos. 9 to 11 of the NCB form Ext. PW-1/D. The case property was sent to FSL Junga. The report of the Chemical Analyst is Ext. PX. 13. The accused was apprehended at 3:35 PM on 10.12.2014. It was an isolated place. Though village Jagatsukh is a big village but it was at some distance from the place where the accused was apprehended. The non-association of independent witnesses was neither deliberate nor intentional. There is no reason to disbelieve the testimony of official witnesses. PW-7 SI Basant Singh has given explanation. It was an isolated place. Though village Jagatsukh is a big village but it was at some distance from the place where the accused was apprehended. The non-association of independent witnesses was neither deliberate nor intentional. There is no reason to disbelieve the testimony of official witnesses. PW-7 SI Basant Singh has given explanation. According to him, the independent witnesses could not be associated due to the topographical location and there was no abadi. The statements of the official witnesses can be relied upon if they inspire confidence. The official witnesses had no inimical relations with the accused. 14. Their lordships of the Hon’ble Supreme Court, in a recent decision in the case of Karamjit Singh vs. State (Delhi Administration), reported in AIR 2003 SC 1311 , have held that there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. Presumption that person acts honestly applies as much in favour of police personnel as of other persons. It has been held as follows: “8. Shri Sinha, learned senior counsel for the appellant, has vehemently urged that all the witnesses of recovery examined by the prosecution are police personnel and in absence of any public witness, their testimony alone should not be held sufficient for sustaining the conviction of the appellant. In our opinion the contention raised is too broadly stated and cannot be accepted. The testimony of police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds. It will all depend upon the facts and circumstances of each case and no principle of general application can be laid down. PW11 Pratap Singh has clearly stated in the opening part of his examination-in-chief that ACP Shakti Singh asked some public witnesses to accompany them but they showed their unwillingness. PW10 Rajinder Prasad, SI has given similar statement and has deposed that despite their best efforts no one from public was willing to join the raiding party due to the fear of the terrorists. Exactly similar statement has been given by PW9 R.D. Pandey. PW10 Rajinder Prasad, SI has given similar statement and has deposed that despite their best efforts no one from public was willing to join the raiding party due to the fear of the terrorists. Exactly similar statement has been given by PW9 R.D. Pandey. We should not forget that the incident took place in November 1990, when terrorism was at its peak in Punjab and neighbouring areas. The ground realities cannot be lost sight of that even in normal circumstances members of public are very reluctant to accompany a police party which is going to arrest a criminal or is embarking upon search of some premises. At the time when the terrorism was at its peak, it is quite natural for members of public to have avoided getting involved in a police operation for search or arrest of a person having links with terrorists. It is noteworthy that during the course of the cross- examination of the witness the defence did not even give any suggestion as to why they were falsely deposing against the appellant. There is absolutely no material or evidence on record to show that the prosecution witnesses had any reason to falsely implicate the appellant who was none else but a colleague of theirs being a member of the same police force. Therefore, the contention raised by Shri Sinha that on account of non-examination of a public witness, the testimony of the prosecution witnesses who are police personnel, should not be relied upon has hardly any substance and cannot be accepted.” 15. Mr. Saurav Rattan, Advocate, for the accused has vehemently argued that Section 50 of the ND & PS Act has not been complied with in the present case. In fact, it was not required to be complied with since the recovery has been made from the ‘boru’ (gunnysack) carried by the accused. Still, the accused has also been personally searched and Section 50 of the ND & PS Act has also been duly complied with as per Ext. PW- 1/A. He was apprised of his legal right to be searched either before the Gazetted Officer or the nearest Magistrate. However, the accused has given consent to be searched by the police. 16. The report of the Chemical Analyst is Ext. PX. All the seals were found intact when the case property reached FSL Junga and tallied with specimen seals sent by the forwarding authority. However, the accused has given consent to be searched by the police. 16. The report of the Chemical Analyst is Ext. PX. All the seals were found intact when the case property reached FSL Junga and tallied with specimen seals sent by the forwarding authority. The prosecution has proved beyond reasonable doubt that the accused was found in exclusive and conscious possession of charas weighing 3.100 kg. There is no occasion for us to interfere with the well reasoned judgment of the learned trial Court dated 15.2.2016. 17. Accordingly, there is no merit in this appeal, the same is dismissed.