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2016 DIGILAW 1202 (HP)

Govind Kumar v. State of Himachal Pradesh

2016-06-28

RAJIV SHARMA

body2016
JUDGMENT : Rajiv Sharma, J. 1. Both the appeals arise out of one and the same judgment and common questions of law and facts are involved in the same, hence, both the appeals were taken up for hearing together and are being disposed of by this common judgment. 2. The present appeals have been filed against Judgment dated 1.5.2015 rendered by the learned Special Judge (Additional Sessions Judge-II), Shimla, Himachal Pradesh, whereby appellants-accused (hereinafter referred to as 'accused' for convenience sake), who were charged with and tried for offence under Sections 20 and 29 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as 'Act' for convenience sake) have been convicted to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.20,000/- each, and, in default of payment of fine, to further undergo simple imprisonment for a period of six months. 3. Case of the prosecution, in a nutshell, is that on 16.2.2011, a police party headed by SI Phool Singh (PW-10) along with Dulu Ram, HC Shiv Kumar, HHC Tek Singh and Constable Naresh Kumar in a private vehicle No. HP-09-1499 was present at place Kadog in connection with their routine patrolling and Nakabandi duty. At about 4.30 AM, one Maruti car bearing registration No. HP-01K-1365 appeared from Kingal side. Vehicle was stopped and checked. Accused Hemant was sitting on the driver seat and Govind Kumar was sitting in the front seat. Accused Jia Lal and Naresh Kumar were found sitting in the back seat. On checking of the vehicle, a packet was recovered from the back seat where accused Jia Lal and Naresh Kumar were found sitting. Packet was Khaki in colour and was duly sealed with Khaki tape. On opening the packet, black substance in round shapes was recovered. It was found to be Charas. It weighed 540 grams. It was put back inside packet and then sealed in a packet with six seal impressions of ‘D’. NCB form in triplicate was filled in. Seal impression was handed over to Shiv Kumar. Charas was taken into possession. Site plan was prepared. Case property was produced before SHO Police Station Dhalli, who resealed the same with three seal impressions of ‘S’ and issued resealing certificate Ext. PW-6/D. Case property was deposited with MHC Police Station, Dhalli. He entered the same at Sr. No. 649 of the Malkhana Register. Charas was taken into possession. Site plan was prepared. Case property was produced before SHO Police Station Dhalli, who resealed the same with three seal impressions of ‘S’ and issued resealing certificate Ext. PW-6/D. Case property was deposited with MHC Police Station, Dhalli. He entered the same at Sr. No. 649 of the Malkhana Register. Case property was sent to FSL Junga through MHC Rattan Pal. Chemical Examination report is Ext. PW-10/D. Investigation was completed. Challan was put up in the Court after completing all the codal formalities. Accused Naresh Kumar sitting in the back seat of the vehicle in question was a minor. His date of birth is 8.5.1993. 4. Prosecution has examined as many as eleven witnesses. Accused were also examined under Section 313 CrPC. They pleaded innocence. Learned trial Court convicted the accused as noticed above. Hence, these appeals. 5. Mr. Vivek Sharma, Advocate has vehemently argued that the prosecution has failed to prove its case against the accused. 6. Mr. Parmod Thakur, Additional Advocate General, has supported Judgment dated 1.5.2015. 7. HC Shiv Kumar (PW-1) testified that on 16.2.2011, he along with HC Dilu Ram No. 132 and Constable Tek Singh, Constable Naresh in a private vehicle No. HP-09A-1499, was present in connection with routine patrolling duty at village Kadog. A Maruti Car bearing registration No. HP-01K-1365 appeared from Kingal side at about 4.30 AM. The vehicle was stopped. Four persons were sitting inside the vehicle. Hemant Kumar was on driver seat. Govind Ram was in the front seat and Jia Lal and Naresh Kumar were sitting in the rear seats. On checking, a Khaki parcel was found from beneath the rear seat, occupied by Naresh and Jia Lal. On opening the parcel, black round shaped substance was found. It was found to be Charas. It was weighed with electronic scale. It weighed 540 grams. It was put back into the packet and sealed with six seal impressions of ‘D’. Seal impression was taken on a separate piece of cloth. NCB form in triplicate was filled in. Charas was taken into custody. He identified his signatures on Ext. PW-1/B. In his cross-examination, he has admitted that only one team left for patrolling from police post Sunni. Seal impression was taken on a separate piece of cloth. NCB form in triplicate was filled in. Charas was taken into custody. He identified his signatures on Ext. PW-1/B. In his cross-examination, he has admitted that only one team left for patrolling from police post Sunni. He could not narrate whether there was a gap between the floor and the front seat of the vehicle and whether there is no gap between rear seats and the floor. Recovery was effected from the back seat where Naresh Kumar and Jia Lal were sitting. Recovery was effected after removing entire rear seat. He admitted that army personnel remained on duty around the clock at Kadog. He denied the suggestion that they had prior information about the offending vehicle. 8. HHC Tek Singh (PW-2) also corroborated the statement of PW-1 Shiv Kumar, about the manner in which Charas was recovered from the car. Rukka was handed over to him at 6.30 AM for registration of case in Police Station, Dhalli. Thereafter, FIR No. 28/11 was registered. He carried the FIR to the spot and handed over the same to IO. In his cross-examination, he has admitted that there was a gap between the rear seat and the floor of the vehicle from where they effected recovery. He did not remember whether Investigating Officer removed the seat or seat cover. They checked 2-3 vehicles at Basantpur and thereafter left for Kadog. Entire proceedings were conducted in search light in his presence. 9. HC Shiv Kumar No. 172 (PW-3) testified that at about 6.30 PM, Inspector/SHO Balbir Singh handed over to him a sealed parcel with six seal impressions of ‘D’ and five seal impressions of ‘S’ contained 540 grams Charas in round shape. He was handed over seal sample ‘D’ and ‘S’ along with NCB form in triplicate. He made entry in the Malkhana Register at Sr. No. 649 on 16.2.2011. On 19.2.2011, he handed over the case property to HHC Rattan Pal vide RC No. 27/11. On return, HHC Rattan Pal handed over the receipt to him. 10. Constable Naresh (PW-5) also deposed the manner in which Charas was recovered from the car. Search, seizure and sampling proceedings were completed at the spot. No. 649 on 16.2.2011. On 19.2.2011, he handed over the case property to HHC Rattan Pal vide RC No. 27/11. On return, HHC Rattan Pal handed over the receipt to him. 10. Constable Naresh (PW-5) also deposed the manner in which Charas was recovered from the car. Search, seizure and sampling proceedings were completed at the spot. In his cross-examination, he has admitted that there was gap of 6 inches between the front seat and the floor of the Maruti car but there was no gap between the rear seat and the floor of the car. Accused were taken out of the vehicle at the time of removing rear seat. Accused were given option either to be searched before a Magistrate or a Gazetted Officer. He did not remember who conducted the search of the SI Phool Singh. 11. Inspector Balbir Singh (PW-6) deposed that on 16.2.2011, SI Phool Singh produced one sealed parcel sealed with six seal impressions of ‘D’ containing 540 grams Charas, which was resealed by him after using seal impression ‘S’, five times. He also appended seal impression ‘S’ on the NCB form. He deposited the sealed parcel along with NCB form with MHC Shiv Kumar. 12. HHC Rattan Pal (PW-8) carried case property to FSL Junga, on the basis of RC No. 27/11. 13. Lal Singh (PW-9) issued birth certificate of Naresh Kumar vide Ext. PW-9/B. Date of birth of Naresh Kumar was 8.5.1993. 14. SI Phool Singh (PW-10) deposed the manner in which accused were found traveling in the car and 540 gram Charas was recovered from the car. He filled in NCB form. He also prepared Rukka Ext. PW-10/A, on the basis of which FIR Ext. PW-6/A was registered against accused. Accused were produced before the Court. Accused Naresh Kumar was produced before the Juvenile Justice Board. Case property was sent for chemical analysis. In his cross-examination, he has admitted that in Maruti car, there is gap between the floor and the front seat whereas it is not so in rear seat. They recovered the Charas by removing the seat. He himself removed the seat and effected recovery. Personal search of accused was also effected after their arrest. No option was given to the accused that they were free to exercise option to be searched before a Magistrate or a Gazetted Officer. 15. Accused were traveling in Maruti car bearing No. HP-01K-1365. They recovered the Charas by removing the seat. He himself removed the seat and effected recovery. Personal search of accused was also effected after their arrest. No option was given to the accused that they were free to exercise option to be searched before a Magistrate or a Gazetted Officer. 15. Accused were traveling in Maruti car bearing No. HP-01K-1365. Car was signalled to stop. Charas was recovered from the rear seat of car. It weighed 540 grams. All the codal formalities were completed at the spot including filling up NCB form. Rukka was prepared vide Ext. PW-6/A, on the basis of which FIR Ext. PW-10/A was registered. Case property was produced before PW-6 Inspector Balbir Singh for resealing. He resealed the same and handed over to MHC Shiv Kumar. He entered the same in Malkhana Register at Sr. No. 649. Case property was sent by Shiv Kumar to FSL Junga vide RC No. 27/11 through PW-8 Rattan Pal. He deposited the same with FSL Junga. According to Ext. PW-10/D, contraband was found to be Charas. 16. Mr. Vivek Sharma, Advocate has vehemently argued that there are minor contradictions as to whether there was a gap between the floor of the vehicle and rear seats. According to him, PW-10 Balbir Singh deposed that recovery was effected after removing entire seat. PW-2 HHC Tek Singh deposed that there was gap between floor and rear seat of the vehicle from where recovery was effected. PW-5 Constable Naresh deposed that there is a gap of 6 inches between front seat and floor of Maruti 800. PW-10 Balbir Singh deposed that there was a gap between floor and front seat. It was not so in the case of rear seat. Recovery was effected after removing the seat of the car itself. However, fact of the matter is that Charas has been recovered from the rear seat of car occupied by the accused. Recovery was effected as per PW-10 Balbir Singh, after removing rear seat partially. Charas was hidden below seat. Minor contradiction that whether there was gap between rear seat and floor is not material. All the official witnesses have stated in unison that Charas was recovered from the back seat of car. 17. Mr. Vivek Sharma, Advocate, has also vehemently argued that the Section 50 of the Act has not been complied. Charas was hidden below seat. Minor contradiction that whether there was gap between rear seat and floor is not material. All the official witnesses have stated in unison that Charas was recovered from the back seat of car. 17. Mr. Vivek Sharma, Advocate, has also vehemently argued that the Section 50 of the Act has not been complied. PW-10 Balbir Singh has categorically deposed that personal search of accused was carried only after their arrest. Moreover, since Charas was recovered from the vehicle, Section 50 of the Act was not required to be complied with. Recovery was made at 4.30 AM from the place which was isolated. Thus, there was no possibility of finding any independent witnesses at 4.30 AM on 16.2.2011. 18. Prosecution has proved its case against the accused beyond doubt. 19. Accordingly, there is no merit in both the appeals and the same are dismissed, so also the pending applications, if any.