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2016 DIGILAW 1404 (HP)

Varun Kumar Malhotra v. State of Himachal Pradesh

2016-07-15

RAJIV SHARMA, SURESHWAR THAKUR

body2016
JUDGMENT : Rajiv Sharma, J. This appeal is instituted against Judgment dated 31.1.2015 rendered by the learned Special Judge, Ghumarwin, District Bilaspur, Himachal Pradesh (Camp at Bilaspur) in Sessions Trial No. 10/3 of 2014, whereby the appellant-accused (hereinafter referred to as 'accused' for convenience sake), who were charged with and tried for offences under Sections 20 and 29 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as 'Act' for convenience sake), have been sentenced to undergo rigorous imprisonment for a period of ten years each and to pay a fine of Rs. 1.00 Lakh each for offence under Section 20(b)(ii)(C) of the Act. In default of payment of fine, to further undergo simple imprisonment for six months. Accused have further been sentenced to undergo rigorous imprisonment for a period of ten years each and to pay fine of Rs. 1.00 lakh each for offence under Section 29 of the Act. In default of payment of fine, to further undergo simple imprisonment for six months each. Both the sentences were ordered to run concurrently. 2. Case of the prosecution, in a nutshell, is that PSI Tavender Thakur (PW-13) alongwith Constable Amit (PW-4), Constable Vijay Kumar (PW-1), Constable Sandeep Kumar and HHG Hans Raj had set up a Naka at Ghumai Chowk on the intervening night of 25/26.2.2014. At about 1.30 AM, one Maruti Car silver in colour, bearing registration No. HP-06-4403, came from Bilaspur side. It was signalled to stop. Accused sitting on the seat beside the driver threw on the rear seat, an orange coloured bag from inside his jacket. Accused tried to run away. They were nabbed. Accused disclosed their identities. Vehicle was searched. Orange coloured bag (Ext.P2) lying on rear seat of the Car was searched. A yellow coloured bag (Ext. P3) was found from inside the orange coloured bag. It contained Charas Ext P4. HHC Raj Kumar was sent to bring the weights and scale. Charas weighed 1.4 kg. Charas was put back in the same yellow coloured carry bag. This bag was put back in the orange coloured bag. It was sealed in a plain cloth parcel (Ext.P1) with six seal impressions of seal ‘M’. Sample seal was taken on a piece of plain cloth (Ext. PW-1/A). NCB-1 form in triplicate was filled in. seal after use was handed over to Constable Vijay Kumar. This bag was put back in the orange coloured bag. It was sealed in a plain cloth parcel (Ext.P1) with six seal impressions of seal ‘M’. Sample seal was taken on a piece of plain cloth (Ext. PW-1/A). NCB-1 form in triplicate was filled in. seal after use was handed over to Constable Vijay Kumar. Parcel containing Charas alongwith car was taken into possession. Rukka Ext. PW-9/A was prepared and sent through Constable Vijay Kumar to Police Station. Inspector/SHO Sita Ram Sandhu registered FIR Ext. PW-9/B. Case property consisting of parcel, NCB-I form in triplicate and sample of seal ‘M’ were handed over to Inspector SHO Sita Ram Sandhu for resealing. Inspector/SHO Sita Ram Sandhu resealed the same with six seal impressions of ‘A’. Impression of seal was also put on NCB-1 form. Sample of seal ‘A’ was taken on a piece of cloth (Ext. PW-9/D). Case property was handed over to HC Mahinder Singh. MHC made entry in the register of Malkhana at Sr. No. 32. He sent the parcel, NCB-1 form in triplicate, copy of FIR, sample seals ‘M’ and ‘A’, docket and recovery memo to State Forensic Science Laboratory, Junga for analysis through Constable Sanjeev Kumar on 1.3.2014 vide RC No. 39/14, copy of which is Ext. PW- 5/A. Constable Sanjeev Kumar carried the case property to SFSL Junga and deposited them in safe condition there. He handed over receipt to MHC on his return. Report of FSL Junga is Ext. PW-5/B. Investigation was completed and Challan was put up in the Court after completing all codal formalities. 3. Prosecution has examined as many as thirteen witnesses to prove its case against the accused. Accused were also examined under Section 313 CrPC. Their case was that of denial simpliciter. Accused were convicted and sentenced as noticed herein above. Hence, this appeal. 4. Mr. Virender Singh Rathour, Advocate, argued that the prosecution has failed to prove its case against accused. 5. Mr. P.M. Negi, Deputy Advocate General, has supported the judgment of conviction dated 31.10.2015. 6. We have heard the learned counsel for the parties and also gone through the record carefully. 7. Constable Vijay Kumar (PW-1) testified that on the intervening night of 25/26.2.2014, he alongwith Constable Amit Kumar, Constable Sandeep Kumar, HHG Hans Raj and ASI Tavender Kumar was on patrolling duty in the official vehicle. They had set up a Naka at Ghumani Chowk. 7. Constable Vijay Kumar (PW-1) testified that on the intervening night of 25/26.2.2014, he alongwith Constable Amit Kumar, Constable Sandeep Kumar, HHG Hans Raj and ASI Tavender Kumar was on patrolling duty in the official vehicle. They had set up a Naka at Ghumani Chowk. At about 1.30 AM, a Maruti car bearing No. HP-06-4403 came from Bilaspur side. ASI Tavender signalled the vehicle to stop. The driver stopped the car. Another person sitting on seat by the side of driver threw a bag from his jacket, on the rear seat of the car. Accused tried to run away. They were nabbed. Accused disclosed their identities. Vehicle was searched. The bag thrown on back seat was checked. It contained another yellow bag. Yellow bag contained Charas. HHC Raj Kumar was sent to bring weights and scale to the spot. Charas was weighed. It weighed 1.4 kg. It was put back in the yellow coloured bag. This bag was then put back in the orange coloured bag and thereafter, sealed in a cloth parcel with six seal impressions of seal ‘M’. Specimen of seal ‘M’ was taken on a piece of plain cloth. NCB-I form in triplicate was filled in at the spot. Seal after use was handed over to him. PW-1 was further examined on 7.7.2015. In his examination-in-chief he deposed that on 26.2.2014 at about 3 AM, PSI Tavender Singh had handed over to him Rukka Ext. PW-9/A with a direction to take it to the Police Station, Ghumarwin, for registration of FIR. He handed over the same to the MHC. FIR Ext. PW-9/B was registered. In his cross-examination, he deposed that the vehicle had come at about 1.30AM. In between, they had checked 20-25 vehicles. No bus was checked. Only small vehicles and trucks were checked because of large number of thefts in the area. He admitted that Shimla-Dharamshala National Highway was a busy road. He denied the suggestion that even during night vehicles frequently ply on it. 8. Constable Sanjeev Kumar (PW-2) deposed that on 1.3.2014 MHC Mohinder Sigh handed over one parcel sealed with six seal impressions of ' M’ and six seal impressions of ‘A’ stated to be containing 1.4 kg Charas, specimen of seals, ‘A’ and ‘M’, copy of FIR memo of recovery, NCB-I form in triplicate, vide RC No. 39/2014 for depositing the same with FSL Junga. He deposited the same with FSL Junga on the same day. 9. Constable Amit Kumar (PW-4) deposed the manner in which vehicle was intercepted at 1.30 AM, Charas was recovered. He was declared hostile and cross-examined by the learned Public Prosecutor. In his cross-examination, he has admitted that Ext. PW- 4/A was signed by both the accused. He also admitted that after sealing, Charas in a cloth parcel, it alongwith vehicle bearing registration No. HP-06-4403 was seized vide seizure memo Ext. PW- 1/B. He admitted that the NCB-I form was filled in at the spot by the IO. He also admitted that on the completion of proceedings, Rukka was sent to Police Station, by the IO. He admitted his signatures on sample seal Ext. PW-1/A. In his cross-examination, he has admitted that 20-25 vehicles were checked by them. He deposed that Shimla- Dharamshala road was a busy road. Volunteered that since it was night time a few vehicles were plying on the road. 10. HC Mohinder Singh (PW-5) deposed that on 26.2.2014, Inspector SR Sandhu had deposited with him a sealed parcel with six seal impressions of ‘M’ and six seal impressions of ‘A’, NCB-I form in triplicate and vehicle bearing registration No. HP-06-4403. He made entry at Sr. No. 32. 11. Shri Prithvi Singh (PW-7) deposed that on 27.2.2014, he had come to know from his brother that his vehicle had been impounded by the police at Ghumarwin. 12. District Inspector Sita Ram Sandhu (PW-9) deposed that on 26.2.2014, at about 3.45 AM, he had received Rukka Ext. PW-9/A through Constable Vijay Kumar, sent by PSI Tavender Singh. He registered FIR Ext. PW-9/B on the basis of Rukka. On the same day, at about 4.40 AM, PSI Tavender Singh had handed over to him one parcel duly sealed with six seal impressions of ‘M’, stated to be contained 1.4 kg Charas, sample seal, NCB-I form in triplicate. Seals were tallied. They were found intact. In the presence of MHC, he had resealed the parcel with six seal impressions of ‘A’. Seal impression was also put on NCB-I form, Ext. PW-9/C and filled up columns No. 9 to 11 in the form. Specimen of seal ‘A’ was taken on cloth piece Ext. PW-9/D. He deposited the parcel alongwith samples of seals, NCB-I form in triplicate with MHC. 13. Seal impression was also put on NCB-I form, Ext. PW-9/C and filled up columns No. 9 to 11 in the form. Specimen of seal ‘A’ was taken on cloth piece Ext. PW-9/D. He deposited the parcel alongwith samples of seals, NCB-I form in triplicate with MHC. 13. Constable Raj Kumar (PW-11) deposed that on 26.2.2014 at about 1.35 AM, SHO /Inspector Sita Ram Sandhu had directed him to take the scale and weights to Ghumani Chowk. He took them on official motor cycle. He handed over the weights and scale at the spot to PSI Tavender Singh. In his cross-examination, he deposed that in his presence, no efforts were made to call for independent witnesses. 14. PSI Tavender Singh (PW-13) testified the matter in which vehicle was intercepted. Contraband was recovered. All the codal formalities were completed. He filled in Rukka. It was sent through Constable Vijay Kumar to Police Station. FIR was registered. Site map was prepared. In his cross-examination, he has admitted that road where the accused were apprehended was a busy road. Volunteered that during night time, movement of vehicles is very less. He has also deposed that no public witness was associated as it was not possible. 15. What can be deduced from the discussion of evidence made herein above, is that the accused were apprehended while travelling in a Maruti car bearing registration No. HP-06-4403. Bag was recovered. It contained Charas. All the codal formalities were completed at the spot. Rukka was sent to the Police Station, on the basis of which FIR was registered. Case property was produced before SHO. He resealed the same and deposited it with the MHC. MHC sent the same to FSL Junga. According to the report of FSL, Junga, contraband was found to be Charas. 16. Mr. Virender Singh Rathour, Advocate has vehemently argued that the police have not associated independent witnesses at the time when accused were apprehended and search, seizure and sampling proceedings were completed on the spot. He has drawn the attention of the Court to the statement of PW-11 HHR Raj Kumar that he has deposed in his cross-examination that no efforts were made to call independent witnesses. However, fact of the matter is that PW-13 Tavender Singh, in his cross-examination has deposed that no public witness was associated as it was not possible. He has drawn the attention of the Court to the statement of PW-11 HHR Raj Kumar that he has deposed in his cross-examination that no efforts were made to call independent witnesses. However, fact of the matter is that PW-13 Tavender Singh, in his cross-examination has deposed that no public witness was associated as it was not possible. Fact of the matter is that the vehicle in question was intercepted at 1.30 AM in the morning. There was no possibility of associating independent witnesses at this time. Statements of official witnesses inspire confidence. PW-1 Constable Vijay Kumar has deposed that they had tried to call for independent witnesses, but none was available. 17. Their lordships of the Hon’ble Supreme Court 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. 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.” 18. Their Lordships of the Hon'ble Supreme Court in Bharwada Bhoginbhai Hirjibhai vs State of Gujarat reported in 1983 (3) SCC 217 , have held that by and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another. 19. The mental faculties therefore cannot be expected to be attuned to absorb the details. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another. 19. Minor discrepancies have not shaken the whole of the prosecution case. Thus, the statements of official witnesses in this case are believable and trustworthy. 20. Mr. Virender Singh Rathour, Advocate has faintly argued that Section 50 of the Act has not been complied with. Contraband was recovered from the Car, thus the provisions of Section 50 of the Act were not attracted. Parcel remained intact from the date of seizure till analysis in the Laboratory. Mr. Rathour further submits that the police have seized 1 kg 400 grams Charas but net weight of Charas was 1.416 kg. There is bound to be variation since PW-11 HHC Raj Kumar has brought traditional weights and scale. All the exhibits are weighed on modern scale at FSL Junga. 21. Their Lordships of the Hon'ble Supreme Court in Dehal Singh & Ors Vs. State of Himachal Pradesh reported in AIR 2010 SC 3594 have held that small difference in weight loses its significance, when one finds no infirmity in other part of the prosecution story. 22. Prosecution has proved its case against the accused to the hilt. There is no occasion for this Court to interfere with the well reasoned judgment of the learned trial Court. 23. Accordingly, there is no merit in the present appeal and the same is dismissed, so also the pending applications, if any.