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Himachal Pradesh High Court · body

2016 DIGILAW 1459 (HP)

Shyam Prashad v. State of H. P.

2016-07-21

RAJIV SHARMA, VIVEK SINGH THAKUR

body2016
JUDGMENT : Rajiv Sharma, J. 1. This appeal is instituted against the judgment dated 23.11.2015, rendered by the learned Special Judge, Kullu, H.P., in Sessions trial No. 61/2014, 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 Act), has been convicted and sentenced to undergo rigorous imprisonment for a term of fifteen years along with fine of Rs.1,00,000/- and in default of payment of fine, the accused was further ordered to undergo simple imprisonment for a period of one year. 2. The case of the prosecution, in a nut shell, is that on 15.5.2014, as per bus ticket Ext. PW-1/D, accused was traveling in HRTC bus en-route to Manikaran from Haridwar. He was sitting on seat No. 10. PW-3 Deepak Kumar was conductor of the bus. On 16.5.2014, at about 6:30 AM, the police team headed by SI Raj Kumar along with HHG Hukam Ram, HHC Shyam Dass and HHG Hem Raj left Police Post Manikaran for routine patrolling and traffic checking towards Shangna road and Barshaini etc. At about 9:30 AM the police party was present at Tegrinullah, where accused was seen coming from Manikaran side. He was going towards Barshaini. The accused was having a rucksack (pithu bag). On seeing the police party, he stopped and turned back. While turning back, he threw the rucksack on a hedge towards right side of the river and then tried to run away. He was overpowered. He told that he was working with M/S Patel India Pvt. Company at Barshaini. Accused was brought to the place where pithu bag was thrown by him. SI Raj Kumar asked the accused to lift the bag having inscription “one Polar” over it. The place was isolated. PW-2 HHC Sham Dass was sent to call for independent witnesses, but no one was available. PW-10 SI Raj Kumar associated HHG Hukam Chand and HHC Shyam Dass as witnesses and pithu bag was searched. On checking the bag, charas was recovered. It weighed 10.496 kg. The I.O. packed the entire stuff in the same fashion in a cloth parcel and sealed with eight seals of letter “R”. Samples of seal were also taken on a piece of cloth. IO also filled in NCB-I form in triplicate. Rukka Ext. On checking the bag, charas was recovered. It weighed 10.496 kg. The I.O. packed the entire stuff in the same fashion in a cloth parcel and sealed with eight seals of letter “R”. Samples of seal were also taken on a piece of cloth. IO also filled in NCB-I form in triplicate. Rukka Ext. PW-7/A was prepared and sent to the Police Station for registration of FIR. FIR Ext. PW-7/B was registered by SHO Sher Singh (PW-7). The case property was produced before SHO Neel Chand (PW-9). He resealed the same with three seals of letter “K”. He also filled in relevant columns of NCB-I form and also drew sample seal of letter “K” vide Ext. PW-9/A. Thereafter, he deposited the case property with MHC Gajender Pal (PW-5) who made entry in the malkhana register vide Ext. PW-5/A at Sr. No. 149. The case property was handed over by HC Gajender Pal to Karam Dass (PW-6) who took the same to FSL Junga along with relevant documents vide RC No. 218 of 2014. 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 ten witnesses. The accused was also examined under Section 313 Cr.P.C. According to him, he was falsely implicated. The learned trial Court convicted the accused, as noticed hereinabove. Hence, this appeal. 4. Mr. Naveen K. Bhardwaj, Advocate, has vehemently argued that the prosecution has failed to prove its case against the accused. On the other hand, Mr. V.S. Chauhan, Addl. AG, for the State, has supported the judgment of the learned trial Court dated 23.11.2015. 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 HHG Hukam Ram deposed that he along with the police officials had departed from PP Manikaran at 6:30 AM in official vehicle No. HP 34A-0049. At about 9:30 AM, they were sitting near Tegri Nallah by the side of road when one person was found coming with a pithu bag from Manikaran side. On seeing the police party, he threw the bag which he was having on a hedge. He turned towards Manikaran. He was overpowered. He disclosed his identity and told that he was working with Patel Construction Company at Barshaini. On seeing the police party, he threw the bag which he was having on a hedge. He turned towards Manikaran. He was overpowered. He disclosed his identity and told that he was working with Patel Construction Company at Barshaini. He was asked to lift the bag he had thrown and then he was told to open it. It contained charas. It weighed 10.496 kg. All the codal formalities were completed on the spot, including filling up of NCB-I form. Rukka was prepared and sent to the Police Station for registration of FIR. Thereafter, FIR was registered. In his cross-examination, he deposed that they had gone to Barshaini on that day. The distance between Manikaran and Tegri Nallah is two kms. Villages Tosh, Pulga and Tulga were towards Barshaini. He denied the suggestion that Village Shangna was at a distance of 500 meters from that place towards Manikaran. Volunteered that it was at a distance of 1½ kms. It took five minutes from that place in a vehicle to go to Rashkat or Shangna. They remained at the spot for 1½ hours. During that period 1-2 vehicles crossed that area. Vehicles were not stopped by them. HHG Sham Dass was sent in search of independent witnesses before opening the zip of pithu bag Ext. P-2. He had gone towards both sides from that place. He returned after about twenty minutes. Then he along with HHG Hem Raj was associated in the investigation and accused was asked to open the bag. It was opened. He also admitted that personal search of the accused was conducted after the recovery of the contraband. 7. PW-2 HHC Sham Dass also deposed the manner in which the accused was intercepted and charas weighing 10.496 kgs. was recovered. He was sent by SI Raj Kumar to bring independent witnesses. He had gone towards both sides of the spot and as such he along with HHG Hukam Raj was joined in the investigation. In his cross-examination, he deposed that he came back to the spot after making search of independent persons after about 10-15 minutes. The search of the bag of the accused was conducted after his arrival. The accused had thrown the bag towards his right side. 8. PW-3 Deepak Kumar, was working as Conductor with HRTC since 2006. In his cross-examination, he deposed that he came back to the spot after making search of independent persons after about 10-15 minutes. The search of the bag of the accused was conducted after his arrival. The accused had thrown the bag towards his right side. 8. PW-3 Deepak Kumar, was working as Conductor with HRTC since 2006. On 15.5.2014, he was deputed in Haridwar Manikaran bus service as Conductor and he joined his duty at Nahan. In his cross-examination, he deposed that the police had got de-boarded the accused from their bus at Jainala. Their bus had reached at Jainala at 7:00 AM. The police checked the bus and got de-boarded 2-3 persons and took them away. The police checked the bus and with 2-3 persons went away along with the bag. One person was sitting with the accused. He was a Nepali. The police took away that person also. A Court question was put to him as to whether he had told these facts to the police. He replied that the police did not ask him anything. 9. PW-5 HC Gajender Pal deposed that he was posted as Addl. MHC in PS Sadar, Distt. Kullu since October, 2013. On 17.5.2014, Insp. SHO Neel Chand deposited with him one sealed parcel sealed with 8 impressions of seal “R”, resealed with three seals of “K” along with NCB form in triplicate, seizure memo, sample seals “R” & “K”. He made entry at Sr. No. 124 of the malkhana register and sent these articles through Const. Karam Dass to FSL, Junga vide RC No. 218/14 on 19.5.2014. 10. PW6 Const. Karam Dass has taken the case property vide RC No. 218/14 to FSL, Junga. 11. PW-9 Insp. Neel Chand deposed that in the year 2014, he was posted as SHO in PS Sadar, Kullu. On 17.5.2014, SI Raj Kumar produced the case property before him. He resealed the same with three seals of “K” and filled in necessary columns of NCB form. He handed over the case property to MHC of the Police Station. 12. PW-10 Insp. Raj Kumar also testified the manner in which the accused was overpowered at 9:30 AM on 16.5.2014. The contraband was recovered. He filled in NCB form Ext. PW-5/C. Rukka Ext. PW-7/A was prepared and sent to the Police Station for registration of the FIR. He prepared the site plan vide Ext. 12. PW-10 Insp. Raj Kumar also testified the manner in which the accused was overpowered at 9:30 AM on 16.5.2014. The contraband was recovered. He filled in NCB form Ext. PW-5/C. Rukka Ext. PW-7/A was prepared and sent to the Police Station for registration of the FIR. He prepared the site plan vide Ext. PW-10/A. He also took photographs. He conducted the personal search of the accused after arrest. He produced the case property before SHO, who resealed the same with three seals of “K”. In his cross-examination, he deposed that the distance between Tegri Nallah and PP Manikaran was about 3 kms. 2-3 buses were checked before Shangna, however, at the spot, no vehicle came. They were going towards Barshaini and had stopped at Tegri Nallah when the accused came. They did not go towards Barshaini beyond Tegri Nallah. As soon as they reached the spot at 9:30 AM, the accused also came there. He denied the suggestion that Manikaran Barshaini road was busy road. 13. What emerges from the analysis of the evidence discussed hereinabove is that the accused was apprehended on 16.5.2014 at 9:30 AM carrying a rucksack. The rucksack was searched and contraband was recovered. It weighed 10.496 kg. All the codal formalities were completed on the spot, including filling up of NCB-I form. The case property was resealed by PW-9 SHO Neel Chand. He deposited the same with PW-5 HC Gajender Pal. PW-5 HC Gajender Pal sent the same to FSL Junga through PW6 Const. Karam Dass. The contraband was found to be charas as per the report of the FSL. 14. The place where the accused was apprehended was isolated and desolate. PW-1 HHG Hukam Ram, in his examination-in-chief, has deposed that HHG Sham Dass was sent in search of independent witnesses before opening the zip of pithu bag Ext. P-2. He had gone towards both sides from that place. He returned after about twenty minutes. No independent witness was available. PW-2 HHC Sham Dass has deposed that he was sent by SI Raj Kumar to bring independent witnesses. He had gone towards both sides of the spot but no independent witness was available. PW-10 Insp. Raj Kumar has also deposed, in his examination-in-chief, that no independent witnesses were available since the place was isolated and desolate. HHC Shyam Dass was sent in search of witnesses. He had gone towards both sides of the spot but no independent witness was available. PW-10 Insp. Raj Kumar has also deposed, in his examination-in-chief, that no independent witnesses were available since the place was isolated and desolate. HHC Shyam Dass was sent in search of witnesses. After about 15 minutes, he returned and told that no independent person was available. The statements of the official witnesses are trustworthy. The statement of PW-1 HHG Hukam Ram has been corroborated by PW-2 HHC Sham Dass as well as by PW-10 Insp. Raj Kumar, the manner in which the accused was apprehended and contraband was recovered. 15. PW-3 Deepak Kumar, conductor of the bus has identified ticket Ext. PW-1/D. According to him, he joined his duty at Nahan when the accused was already sitting in the bus. In his cross-examination, he deposed that the police had got de-boarded the accused from their bus at Jainala. A specific Court question was put to him as to whether he had told these facts to the police. He replied that the police did not ask him anything. The accused has also not disputed the fact that on 15.5.2014, as per the ticket Ext. PW-1/D, he was traveling in the HRTC bus on seat No. 10 from Haridwar to Manikaran. The statements of PW-1 HHG Hukam Ram, PW-2 HHC Sham Dass and PW-10 Insp. Raj Kumar duly prove that the accused was apprehended when he was coming from Manikaran side and tried to flee from the spot. No independent witness was available at the spot. The case of the prosecution moreover was that the accused alighted at Manikaran and thereafter came towards Barshaini. 16. Mr. Naveen K. Bhardwaj, Advocate, has also argued that Section 50 of the Act was not complied with. Section 50 of the Act was not at all attracted in the instant case for the simple reason that the recovery was made from the rucksack of the accused and not from his person. Thus, the prosecution has proved the case against the accused beyond reasonable doubt and there is no occasion for us to interfere with the well reasoned judgment of the learned trial Court dated 23.11.2015. 17. Accordingly, there is no merit in this appeal, the same is dismissed.