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Himachal Pradesh High Court · body

2016 DIGILAW 1297 (HP)

Chhinda Ram alias Shinda Ram v. State of H. P.

2016-07-07

RAJIV SHARMA

body2016
JUDGMENT : Rajiv Sharma, J. 1. This appeal is instituted against the judgment dated 8.4.2015 rendered by the Special Judge, Mandi, District Mandi in sessions trial No. 15 of 2011 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 (hereinafter referred to as the ‘Act’ for brevity sake), has been convicted and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.20,000/- and in default of payment of fine he was further ordered to undergo simple imprisonment for six months under section 20 of the Act. 2. Case of the prosecution, in a nutshell, is that PW-9 ASI Surender Singh with other police officials had gone for patrolling on 9.2.2011 after lodging rapat Ex.PW-4/A. The police party had laid a Nakka at Kainchi Mod. At about 2.00 P.M. accused came from Kullu side. On seeing the police party, turned around and tried to escape. The accused was apprehended. The place was desolate and no independent witness was available. Police made request to various persons, however, no one was ready to be witness in the case. Constables Lalit Kumar and Dhameshar were associated as witnesses. Accused was apprised of his right to be searched either in presence of a Gazetted Officer or a Magistrate vide memo Ex.PW-3/B. Accused consented to be searched by the police. During search, one sky blue coloured handkerchief containing some material was found in his left sock. On opening of handkerchief, 250 grams charas Ex.P-2 was found. The charas was resealed in the same manner and was kept in a cloth, which was sealed with six seal impressions ‘Y’. Sample seal Ex.PW-3/D was drawn and facsimile of seal was drawn on NCB-1 form filled in triplicate on the spot. The seal after use was handed over to PW-3 Lalit Kumar. The case property along with documents was seized vide memo Ex.PW-3/C. Rukka Ex.PW-6/A was prepared and sent to Police Station through constable Dhameshwar. Spot map was prepared. Parcel Ex.P-1 containing charas Ex.P-2, handkerchief Ex.P-3 was produced before PW-7 Surender Pal along with NCB form, sample seals etc. He resealed the same with four seal impressions of seal ‘T’. Case property was deposited with MHC PW-8 Thakur Singh. He made entry in the Malkhana register. Spot map was prepared. Parcel Ex.P-1 containing charas Ex.P-2, handkerchief Ex.P-3 was produced before PW-7 Surender Pal along with NCB form, sample seals etc. He resealed the same with four seal impressions of seal ‘T’. Case property was deposited with MHC PW-8 Thakur Singh. He made entry in the Malkhana register. Case property was sent to FSL, Junga vide RC Ex.PW-8/B through constable Gulab Singh. The police investigated the case and the challan was put up in the Court after completing all the codal formalities. 3. Prosecution examined as many as nine witnesses in all to prove its case against the accused. Statement of accused under Section 313 Cr.P.C. was recorded. The defence of the accused is of simplicitor denial. Trial court convicted and sentenced the accused, as noticed hereinabove. Hence, the present appeal. 4. Mr. Rajesh Kumar, learned counsel for the accused, has vehemently argued that the prosecution has failed to prove its case against the accused. 5. Mr. Parmod Thakur, learned Additional Advocate General, has supported the judgment dated 8.4.2015. 6. I have heard the learned counsel for the parties and have gone through the judgment and record meticulously. 7. PW-2 Gulab Singh has testified that on 11.2.2011, HHC Thakur Dass handed over to him a parcel, which was sealed with seal impression ‘Y’ at four places along with sample seals and NCB form in triplicate vide RC Ex.PW-2/A. He took the same to FSL, Junga. No one tampered with the case property till it remained in his custody. 8. PW-3 Lalit Kumar has deposed that on 9.2.2011, he along with HC Surinder Singh, constable Parma Nand, Constable Narender, Constable Kashmir Singh and Constable Dhameshwar Singh was present at place Kainchi Mod on Nakkabandi. Accused was seen coming from Hanogi towards Pandoh. On seeing the police party, accused tried to escape. He was apprehended. The I.O. tried to associate independent witness in search party and stopped the vehicles passing thereby; however, none was ready to join the search party. Consent of the accused was obtained for his search vide memo Ex.PW-3/B. Accused consented to be searched by the police. Personal search of the accused was conducted and cannabis in the shape of sticks was recovered from the sock of the left foot, which was wrapped in a handkerchief. It weighed 250 grams. All the codal formalities were completed on the spot. Personal search of the accused was conducted and cannabis in the shape of sticks was recovered from the sock of the left foot, which was wrapped in a handkerchief. It weighed 250 grams. All the codal formalities were completed on the spot. In his cross-examination, he has deposed that they left police post at 12.10 P.M. in a private vehicle. Kainchi Mod is at a distance of 2½ KMs and Pandoh Dam is at a distance of 2 KMs from the Police Post. He denied the suggestion that there was one shop at Kainchi Mod. He has also denied that there was a tea stall at the spot, though admitted that employees generally remain at Pandoh Dam. 9. PW-5 Sachan Kumar has deposed that he was directed by the SHO, Police Station Sadar to bring the report and case property of the case from FSL, Junga. He brought the report Ex.PW-5/A, NCB form and other relevant documents. 10. PW-7 Surender Pal has deposed that on 9.2.2011, HC Surender Singh handed over to him one cloth parcel sealed with seal Y at six places along with NCB form in triplicate and sample seal for resealing purposes. The seals were found intact on the parcel. The cloth parcel containing cannabis was resealed by him with seal impression ‘T’ at four places. Sample seal ‘T’ was embossed on the NCB form Ex.PW-7/A. He filled in column Nos. 9 to 11 of NCB form in triplicate. Sample seal T was separately taken on a cloth piece Ex.PW-7/B. Thereafter, case property was deposited in Malkhana. He also prepared resealing certificate Ex.PW-7/C. 11. PW-8 HHC Thakur Singh has testified that on 9.2.2011, Inspector/SHO Surender Pal handed over to him one cloth parcel sealed with seal ‘Y’ at six places and resealed with seal impression ‘T’ at four places containing 250 grams cannabis along with NCB form in triplicate etc. He entered the case property in Malkhana register at Sr. No. 1135. He sent the case property along with documents to FSL, Junga vide RC No.275/2010. 12. PW-9 Surender Singh has deposed the manner in which the accused was arrested. Accused was apprised about his legal right to be searched either in presence of a Gazetted Officer or a Magistrate vide memo Ex.PW-3/B. Accused consented to be searched by the police. His personal search was conducted. Charas weighing 250 grams was recovered. 12. PW-9 Surender Singh has deposed the manner in which the accused was arrested. Accused was apprised about his legal right to be searched either in presence of a Gazetted Officer or a Magistrate vide memo Ex.PW-3/B. Accused consented to be searched by the police. His personal search was conducted. Charas weighing 250 grams was recovered. Case property was taken into possession. The charas was sealed with 6 seal impressions of Y. He prepared Rukka Ex.PW-6/A. It was sent to the Police Station through constable Dhameshwar. He denied the suggestion in his cross-examination that many labourers were present in the mines. He admitted that the spot falls on National Highway. He admitted that number of vehicles cross on the National Highway. He has denied that a tea stall and workshop were situated near the spot. They checked 10 to 20 vehicles after 2.00 P.M. He has denied the suggestion that no attempt was made to join independent witnesses. 13. Accused was apprehended at Kainchi Mod in the afternoon on 9.2.2011. He was apprised of his legal right to be searched in presence of either a Gazetted Officer or a Magistrate vide memo Ex.PW-3/B. He consented to be searched by the police. Charas was recovered from his person. It weighed 250 grams. All the codal formalities were completed on the spot. Rukka Ex.PW-6/A was prepared, on the basis of which FIR was registered. Case property was resealed in accordance with law. It was sent to FSL, Junga for analysis. It was found to be charas. PW-3 HC Lalit Kumar has categorically deposed that the I.O. tried to associate independent witnesses; however, no one was ready to be witness. It is in these circumstances, he was associated in the search party. He has denied that there was one tea stall at Kainchi Mod. Kainchi Mod was at a distance of 2½ KMs from Police Post and 2 KMs from Pandoh Dam. Similarly, PW-9 Surender Singh has denied the suggestion that the police has not made any efforts to join independent witnesses. Statements of police officials inspire confidence and are trustworthy. These cannot be discarded. 14. Kainchi Mod was at a distance of 2½ KMs from Police Post and 2 KMs from Pandoh Dam. Similarly, PW-9 Surender Singh has denied the suggestion that the police has not made any efforts to join independent witnesses. Statements of police officials inspire confidence and are trustworthy. These cannot be discarded. 14. Their Lordships of the Hon’ble Supreme Court in Ram Swaroop versus State (Government of NCT of Delhi) (2013) 14 SCC 235 has held that there is no absolute rule that police officers cannot be cited as witnesses and their depositions should be treated with suspicion since generally public at large are reluctant to come forward to depose before court and, therefore, prosecution case cannot be doubted for non-examining independent witnesses. Their Lordships have held as under: [7] To appreciate the first limb of submission, we have carefully scrutinized the evidence brought on record and perused the judgment of the High Court and that of the trial Court. It is noticeable that the evidence of PW-7, namely, Ritesh Kumar, has been supported by Balwant Singh, PW-5, as well as other witnesses. It has come in the evidence of Ritesh Kumar that he had asked the passerby to be witnesses but none of them agreed and left without disclosing their names and addresses. On a careful perusal of their version we do not notice anything by which their evidence can be treated to be untrustworthy. On the contrary it is absolutely unimpeachable. We may note here with profit there is no absolute rule that police officers cannot be cited as witnesses and their depositions should be treated with suspect. In this context we may refer with profit to the dictum in State of U.P. v. Anil Singh, 1988 Supp 1 SCC 686 wherein this Court took note of the fact that generally the public at large are reluctant to come forward to depose before the court and, therefore, the prosecution case cannot be doubted for non-examining the independent witnesses. [10] Keeping in view the aforesaid authorities, it can safely be stated that in the case at hand there is no reason to hold that non-examination of the independent witnesses affect the prosecution case and, hence, we unhesitatingly repel the submission advanced by the learned counsel for the appellant.” 15. There is no violation of section 50 of the Act, as argued by Mr. Rajesh Kumar, learned counsel for the accused. There is no violation of section 50 of the Act, as argued by Mr. Rajesh Kumar, learned counsel for the accused. Minor contradictions pointed out by Mr. Rajesh Kumar in the statements of PW-6 Dharam Singh and PW-9 Surender Singh have not prejudiced the case of the accused. Fact of the matter is that Rukka Ex.PW-6/A was sent to Police Station on the basis of which FIR was registered. PW-3 Lalit Kumar has testified that Rukka was sent through constable Parma Nand. However, PW-9 Surender Pal has deposed that Rukka was sent through constable Dhameshwar. However, PW-6 Dharam Singh has deposed that Rukka was received by him through Constable Parma Nand. It was minor contradiction, which is bound to happen with the passage of time. 16. Consequently, in view of analysis and discussion made hereinabove, the prosecution has proved its case against the accused to the hilt. 17. Accordingly, there is no merit in the appeal and the same is dismissed.