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2016 DIGILAW 1402 (HP)

Deen Mohammad v. State of H. P.

2016-07-15

RAJIV SHARMA, SURESHWAR THAKUR

body2016
JUDGMENT : Rajiv Sharma, J. 1. The accused have come in appeal against the judgment dated 5.3.2016, rendered by the learned Special Judge (II), Kangra at Dharamshala, H.P., in Sessions Case No. 2-N/VII/2014, whereby the appellants-accused (hereinafter referred to as the accused), who were charged with and tried for offences punishable under Sections 20 & 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act), have been convicted and sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1,00,000/- each for offence under Section 20 read with Section 29 of the Act. In default of payment of fine, each of them was ordered to suffer rigorous imprisonment for a period of six months. 2. The case of the prosecution, in a nut shell, is that on 30.8.2013, police party headed by ASI Ajeet Kumar, In-charge, PP Kandwal was on patrolling in the area for crime detection along with HC Bir Singh, HHC Naresh Kumar, LHC parvinder Kumar and Const. Shashi Pal at Bhadroya Chowk, Old Link Road, Damtal at 1:10 AM. One Alto Car No. HP-44-4100 occupied by the accused came from Kandwal side. It was stopped for checking. A white bag was found lying near the gear lever. On checking the bag, charas was recovered. The driver disclosed his identity as Deen Mohammad. The place was isolated and as such independent witnesses could not be associated. Charas weighed 2.5. kg. It was sealed in a cloth parcel with five seals of seal impression “A”. The IO filled in the NCB form in triplicate and drew facsimile of seal “A” on a separate piece of cloth. The seal after use was handed over to HC Bir Singh. The case property was taken into possession vide separate seizure memo in the presence of witnesses. Rukka was prepared and handed over to HHC Naresh Kumar with direction to deposit the same at PS Nurpur. On receipt of rukka, FIR was registered. The case property was produced before SHO Tilak Singh, PS Nurpur, who resealed the same with five seals of seal impression “T”. The facsimile of seal “T” was also taken on a separate piece of cloth. SHO Tilak Singh filled in the relevant columns of NCB form. The investigation was completed and the challan was put up before the Court after completing all the codal formalities. 3. The facsimile of seal “T” was also taken on a separate piece of cloth. SHO Tilak Singh filled in the relevant columns of NCB form. 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 sixteen witnesses. The accused were also examined under Section 313 Cr.P.C. According to them, they were falsely implicated. The learned trial Court convicted the accused, as noticed hereinabove. Hence, this appeal. 4. Mr. B.L. Soni, Advocate, has vehemently argued that the prosecution has failed to prove its case against the accused. According to him, neither independent witnesses were associated nor Section 50 of the Act was complied with. On the other hand, Mr. M.A. Khan, Addl. AG has supported the judgment of the learned trial Court dated 5.3.2016. 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 HHC Parvinder Kumar testified that he was posted as general duty Constable at PP Kandwal in the year 2013. On 30.8.2013, the police had laid naka at Bhadroya Chowk at 1:10 AM. One Alto car bearing registration No. HP-44-4100 came from Kandwal side towards them. It was signaled to stop. It was driven by accused Deen Mohammad. Chain Lal was also sitting in the Car. One bag was found near the gear liver. On checking it was found to be containing charas in the shape of sticks and balls. Charas weighed 2.5. kg. I.O. prepared the samples and sealed the same at five places with impression “A”. Rukka was also sent to the Police Station through HHC Naresh Kumar. In his cross-examination, he deposed that they had laid naka to apprehend some contraband. Some vehicles were coming and going through their naka and they were checking the vehicles. There was a toll tax barrier at a distance of one km. approximately. He admitted that 2-3 persons were present at toll tax barrier throughout. The personal search of the accused was carried out by the I.O. and thereafter recovery memo was prepared. 7. PW-4 HC Bir Singh also deposed the manner in which the Car was intercepted and contraband was recovered. approximately. He admitted that 2-3 persons were present at toll tax barrier throughout. The personal search of the accused was carried out by the I.O. and thereafter recovery memo was prepared. 7. PW-4 HC Bir Singh also deposed the manner in which the Car was intercepted and contraband was recovered. The spot where the accused were apprehended was a lonely place and due to night independent witnesses could not be associated in the proceedings. The contraband was recovered. It weighed 2.5 kgs. All the codal formalities were completed at the spot. He signed memos Ext. PW-4/A and PW-4/B. In his cross-examination, he admitted that they had started from the Police Post with the motive to recover contraband and liquor etc. They had laid naka at Bhadroya Chowk. He admitted that near the spot toll tax barrier was at a distance of half a kilometer. He also admitted that employees of the barrier remained there throughout day and night. No person from the barrier was associated by them as independent witness. Kandwal was at a distance of 11 km. from the spot. 8. PW-5 HHC Naresh Kumar also deposed the manner in which the Car was intercepted, accused were apprehended and charas was recovered from the car. All the codal formalities were completed at the spot. Rukka was prepared by IO and it was sent through him to the Police Station. At Police Station, FIR was registered. Personal search of the accused was taken and thereafter recovery memo was scribed. He was sent to bring scale and weights. 9. PW-6 Raghubir Singh deposed that police persons came to him and demanded scale and weights at 8:00 AM. He was not having scale and weights. He was declared hostile and cross-examined by the learned Public Prosecutor. In his cross-examination, he deposed that he has signed some documents at the instance of the police. 10. PW-8 ASI Joginder Singh deposed that on 30.8.2013 ASI Ajeet Kumar presented one parcel sealed with seal impression “A” at five places containing 2.5 kg charas along with the NCB form to Addl. SHO Tilak Singh. It was resealed by SHO Tilak Singh with seal impression “T” at five places. The seal of impression was also taken on separate piece of cloth by SHO. Thereafter seal was handed over to him. Re-seal memo was prepared. SHO Tilak Singh. It was resealed by SHO Tilak Singh with seal impression “T” at five places. The seal of impression was also taken on separate piece of cloth by SHO. Thereafter seal was handed over to him. Re-seal memo was prepared. The case property was handed over to MHC Pardeep Kumar to be deposited in the malkhana. 11. PW-10 HHC Subhash Chand deposed that on 1.9.2013, MHC PS Nurpur Pardeep Kumar vide RC No. 256/2013 dated 1.9.2013 handed over to him one parcel containing charas sealed with seal impressions “A” and “T” at five places along with NCB form for chemical examination at FSL, Junga. He deposited the parcel at FSL, Junga on 2.9.2013 under receipt. 12. PW-11 HC Pardeep Kumar deposed that on 30.8.2013 SHO Tilak Singh deposited one sealed parcel sealed with impression “A” and resealed with seal impression “T” at five places along with NCB form with sample seals “A” and “T” which he entered in the malkhana register. The extract of the register is Ext. PW-11/A. The case property was sent to FSL, Junga through Const. HHC Subhash Chand vide RC PW-11/B. 13. PW-13 SI Tilak Singh deposed that he registered FIR PW-13/A. The I.O. in the case also produced case property before him. He resealed the same and handed it over to MHC to be deposited in the malkhana. 14. PW-16 ASI Ajeet Kumar was the I.O. He also deposed the manner in which the Car was intercepted, accused were apprehended and charas was recovered from the car. All the codal formalities were completed at the spot. Rukka was prepared by him and it was sent through HHC Naresh Kumar to the Police Station. At Police Station, FIR Ext. PW-13/A was registered. He went to the Police Station Nurpur and handed over the case property to SHO for resealing. SHO resealed the same and also filled in the relevant columns of NCB-I form. In his cross-examination, he deposed that he sent HHC Naresh Kumar to bring independent witnesses. There was a toll tax barrier at a distance of 100 meters from Bhadroya Chowk. Village Hagwal was in close proximity to the place of naka i.e. Bhadroya Chowk. 15. What emerges from the analysis of the evidence discussed hereinabove is that the accused were apprehended at 1:10 AM on 30.8.2013 at Bhadroya Chowk. The car occupied by the accused was intercepted. Village Hagwal was in close proximity to the place of naka i.e. Bhadroya Chowk. 15. What emerges from the analysis of the evidence discussed hereinabove is that the accused were apprehended at 1:10 AM on 30.8.2013 at Bhadroya Chowk. The car occupied by the accused was intercepted. Charas was found in the bag. All the codal formalities were completed at the spot. Charas weighed 2.5. kg. It was produced before the SHO, who resealed the same and deposited it with the MHC of the Police Station. The case property was sent to FSL, Junga through Const. HHC Subhash Chand vide RC PW-11/B. The samples were found intact and seal impression also tallied with the original seal at FSL, Junga. 16. Mr. B.L. Soni, Advocate for the accused has vehemently argued that the independent witnesses have not been associated at the time of search, seizure and sealing proceedings. He also argued that toll tax barrier was at a distance of 100 meters from the spot. However, the fact of the matter is that the car was intercepted at 1:10 AM at Bhadroya Chowk. It was an isolated and secluded place. PW-16 ASI Ajeet Kumar has sent PW-5 Const. Naresh Kumar to procure independent witnesses. PW-5 HHC Naresh Kumar has also deposed that the place where the accused were apprehended was isolated and no independent witnesses could be associated. PW-4 HC Bir Singh has also deposed that the place where the accused were apprehended was lonely place and due to night independent witnesses could not be associated. Thus, every effort has been made to join independent witnesses. 17. The statements of the official witnesses inspire confidence. It is not one of those cases where the independent witnesses were available but not associated. In the instant case, the place was secluded and thus, there was no possibility of independent witnesses being available at 1:10 AM. 18. Mr. B.L. Soni, Advocate, has vehemently argued that the police has not complied with Section 50 of the Act at the time of personal search of the accused. Mr. M.A. Khan, Addl. Advocate General for the State has drawn the attention of the Court to recovery memos Ext. PW-4/A and PW-4/B. It is evident from recovery memos Ext. PW-4/A and PW-4/B that the accused were searched after their arrest. Mr. M.A. Khan, Addl. Advocate General for the State has drawn the attention of the Court to recovery memos Ext. PW-4/A and PW-4/B. It is evident from recovery memos Ext. PW-4/A and PW-4/B that the accused were searched after their arrest. Since the charas has been recovered from the Car, Section 50 of the Act was not at all required to be complied with. 19. Thus, the prosecution has proved the case against the accused to the hilt and this Court has no occasion to interfere with the well reasoned judgment of the learned trial Court dated 5.3.2016. 20. Accordingly, there is no merit in this appeal and the same is dismissed.