Research › Search › Judgment

Himachal Pradesh High Court · body

2016 DIGILAW 1201 (HP)

Ludar Chand v. State of H. P.

2016-06-28

RAJIV SHARMA

body2016
JUDGMENT : Rajiv Sharma, J. 1. This appeal is instituted against the judgment dated 5.10.2015, rendered by the learned Special Judge, Mandi, H.P., in Sessions trial No. 02/2012, 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 sentenced to rigorous imprisonment for a term of eight years along with fine of Rs.80,000/- and in default of payment of fine, he was further ordered to undergo simple imprisonment for a period of six months. 2. The case of the prosecution, in a nut shell, is that PW-10 ASI Ram Lal, PW-2 HC Narpat Ram, PW-3 HC Krishan Kumar and others were on patrolling duty in a private vehicle on 30.10.2011. The police party laid a naka at Sukki-Bain on National Highway No. 21, as per spot map Ext. PW-10/B. The accused came from Pandoh side on foot carrying a bag in his right hand. On seeing the police party, he turned around and tried to run away. He was apprehended. The place where the accused was apprehended was desolate and no independent witness was available. PW-10 requested the occupants of the vehicles crossing thereby to join the investigation, but all of them declined. He associated HC Krishan Kumar and Const. Dhameshwar Singh as witnesses. The carry bag carried by the accused was searched and black coloured substance in the shape of rectangle and chapattis wrapped in newspaper was found. It was found to be charas. It weighed 800 grams. The charas Ext P-5 along with carry bag Ext. P-2, news paper Ext. P-3 and wrapper Ext. P-4 were sealed in a cloth parcel Ext. P-1 with 9 seals of impression “A”. The NCB form Ext. PW-8/A was filled in triplicate on the spot. Facsimile of seal “A” was taken on NCB forms. The case property along with the relevant documents was taken into possession vide seizure memo Ext. PW-10/A. Rukka Ext. PW-2/B was prepared and sent to the Police Station through LHC Narpat Ram, on the basis of which FIR Ext. PW-2/C was registered. The spot map was prepared. The case property was produced before PW-8 SHO Surender Pal who resealed the same with three seals of impression “C” and took facsimile of seal “C” on the NCB form. PW-2/B was prepared and sent to the Police Station through LHC Narpat Ram, on the basis of which FIR Ext. PW-2/C was registered. The spot map was prepared. The case property was produced before PW-8 SHO Surender Pal who resealed the same with three seals of impression “C” and took facsimile of seal “C” on the NCB form. The case property was deposited with HHC Thakur Singh. He entered the same in the malkhana register vide Ext. PW-5/A. The case property was sent to FSL, Junga through MHC Mansukh Ram vide RC Ext. PW-5/B. The report of the FSL is Ext. PX. The investigation was completed and 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 eleven witnesses. The accused was also examined under Section 313 Cr.P.C. His case is of denial simplicitor. The learned trial Court convicted and sentenced the accused, as noticed hereinabove. Hence, this appeal. 4. Mr. Dalip K. Sharma, Advocate, for the accused has vehemently argued that the prosecution has failed to prove its case against the accused. On the other hand, Mr. Neeraj K. Sharma, Dy. Advocate General for the State has supported the judgment of the trial Court dated 5.10.2015. 5. I have heard the learned counsel for both the sides and have also gone through the judgment and records of the case carefully. 6. PW-2 HHC Narpat Ram, testified that on 30.10.2011, he along with other police personnel was on patrolling duty on National Highway No. 21 at Sukki-Bain. A person came on foot from Pandoh side at 3:30 PM. He was carrying a bag in his right hand. He tried to run away. He was apprehended. The place was secluded and no independent witness was available. The I.O. stopped the vehicles crossing from that point and requested the occupants to join the investigation, however, all of them refused. Thereafter, the I.O. joined HC Krishan Kumar and Const. Dhameshwar Singh as witnesses. The bag carried by the accused was searched. It contained black coloured substance in the form of chapattis. It was weighed. It weighed 800 grams. The charas was re-packed in the same manner and was kept in a cloth parcel which was sealed with 9 seals of seal “A”. NCB form-I was filled in triplicate on the spot. The bag carried by the accused was searched. It contained black coloured substance in the form of chapattis. It was weighed. It weighed 800 grams. The charas was re-packed in the same manner and was kept in a cloth parcel which was sealed with 9 seals of seal “A”. NCB form-I was filled in triplicate on the spot. The case property was taken into possession. Rukka Ext. PW-2/B was scribed and sent to the Police Station, on the basis of which FIR Ext. PW-2/C was registered. In his cross-examination, he deposed that the place known as Badhanu was at a distance of 1 or 2 km from Sukki-Bain. They had checked two buses prior to the arrest of the accused. They had laid naka for detection of crime including contraband. The personal search of the accused was not conducted and only bag was searched. 7. PW-3 HC Krishan Kumar also deposed the manner in which the accused was apprehended, search, seizure and sealing proceedings were completed on the spot. In his cross-examination, he deposed that the distance between Badhanu from the spot was approximately 2 kms. The personal search of the occupants of the bus was also conducted. No person was deputed to bring independent witnesses. No written hukam nama was issued to any persons who declined to join the investigation. He admitted that on Ext PW-3/B, FIR number was written as 263. In his statement also, FIR No. 263 has been mentioned. 8. PW-4 Mansukh Ram testified that on 1.11.2011, HHC Thakur Singh handed over to him one parcel sealed with 9 seals of seal “A” and three seals of seal “C” along with NCB form, sample seals and docket vide RC No. 240 of 2011 with direction to deposit the same at FSL, Junga. He deposited the same at FSL, Junga and handed over the receipt to HHC Thakur Singh. 9. PW-5 HHC Thakur Singh deposed that SHO Surender Pal deposited with him one parcel sealed with 9 seals of “A” and three seals of seal “C” along with NCB form in triplicate, seizure memo, re-seal memo and sample seals “A” and “C”. He made entry at Sr. No. 1293 in the malkhana register vide Ext. 9. PW-5 HHC Thakur Singh deposed that SHO Surender Pal deposited with him one parcel sealed with 9 seals of “A” and three seals of seal “C” along with NCB form in triplicate, seizure memo, re-seal memo and sample seals “A” and “C”. He made entry at Sr. No. 1293 in the malkhana register vide Ext. PW-5/A. He sent the case property sealed with 9 seals of seal “A” and three seals of seal “C” sample seals, NCB form and other related documents through HHC Mansukh Ram vide RC No. 240 of 2011 on 1.11.2011. On 24.11.2011, the case property along with FSL report was brought by HHC Rashal Singh from FSL Junga. 10. PW-7 HHC Rashal Singh testified that he brought the parcel along with the report of FSL duly sealed and deposited the same with HHC Thakur Singh. 11. PW-8 SHO Surender Pal deposed that he was posted as SHO, PS Sadar Mandi. On 30.10.2011, the case property of this case was produced before him by ASI Ram Lal. The parcel was sealed with 9 seals of seal “A”. He resealed the parcel with three seals of seal “C” and filled in the relevant columns of NCB form Ext. PW-8/A. The case property was deposited with HHC Thakur Singh along with relevant documents and sample seals “A” and “C”. 12. PW-10 ASI Ram Lal also deposed the manner in which the accused was apprehended, search, seizure and sealing proceedings were completed on the spot on 30.10.2011. He prepared Rukka Ext. PW-2/B. It was sent to the Police Station on the basis of which FIR Ext. PW-2/C was registered. In his cross-examination, he deposed that approximately 10 vehicles were stopped for joining of witnesses. No legal action was taken against the occupants of the vehicles who declined to join the investigation. The personal search of the accused was not taken at the time of search of the bag. 13. The accused was apprehended on 30.10.2011 at about 3:30 PM at Sukki-Bain. All the codal formalities were completed on the spot. The contraband was produced before PW-8 SHO Surender Pal. He resealed the same with seal impression “C”. He also filled in the relevant columns of NCB-I form. He deposited the same with PW-5 HHC Thakur Singh. PW-5 HHC Thakur Singh made the entry in the malkhana register at Sr. No. 1293. All the codal formalities were completed on the spot. The contraband was produced before PW-8 SHO Surender Pal. He resealed the same with seal impression “C”. He also filled in the relevant columns of NCB-I form. He deposited the same with PW-5 HHC Thakur Singh. PW-5 HHC Thakur Singh made the entry in the malkhana register at Sr. No. 1293. The case property was sent to FSL, Junga vide RC No. 240/2011 through PW-4 Mansukh Ram. The case property was brought back from the FSL, Junga by PW-7 HHC Rashal Singh. The contraband was found to be charas. 14. FIR Ext. PW-2/C was registered. It was bearing No. 264 of 2011 as per Ext. PW-2/C. PW-3 HC Krishan Kumar though deposed in his statement that his statement was recorded in FIR No. 263 but the fact of the matter is that in all the documents, FIR No. 264 has been mentioned, including copy of malkhana register Ext. PW-/B, copy of road certificate and Ext. PW-8/A i.e. NCB-I form. 15. The place where the accused was apprehended was isolated. It has come in the statement of PW-2 HHC Narpat Ram that the I.O. tried to associate independent witnesses but they refused to join the investigation. PW-10 ASI Ram Lal has also admitted specifically that the place where the accused was apprehended was desolate and no witness was available. He stopped 10 vehicles for joining witnesses, however, they declined. In these circumstances, he associated HC Krishan Kumar and Const. Dhameshwar as witnesses. Const. Krishan Kumar has appeared as PW-3. The non-examination of Const. Dhameshwar as a witness is not fatal to the case of the prosecution. 16. Thus, the prosecution has proved the case against the accused beyond reasonable doubt. This Court has no occasion to interfere with the well reasoned judgment of the learned trial Court dated 5.10.2015. 17. Accordingly, there is no merit in this appeal and the same is dismissed.