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Himachal Pradesh High Court · body

2016 DIGILAW 1994 (HP)

State of H. P. v. Khekh Ram

2016-09-19

RAJIV SHARMA, SURESHWAR THAKUR

body2016
JUDGMENT : Rajiv Sharma, J. 1. This appeal is instituted by the State against the impugned judgment dated 29.12.2010, rendered by the learned Special Judge, Kullu, H.P. in Sessions Trial No. 24/2010, whereby the respondents, Khekh Ram and Govind Singh (hereinafter referred to as the “accused” for the convenience sake), who were charged with and tried for offences punishable under Sections 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, the Act) have been acquitted. 2. The case of the prosecution, in a nutshell, is that on 19.10.2009, a police party, headed by PW8 Inspector/SHO Sanjeev Chauhan consisting of SI Tej Ram, HHC Kashmi Ram, PW1 HHC Hira Singh under the leadership of Ahmed Syed, the then Additional Superintendent of Police, Kullu, was on patrolling duty in an official vehicle bearing registration No. HP-03A-1281 being driven by Constable Tej Ram. On 20.10.2009 at about 4.00 A.M. when the police party was present at a place known as Kelti Dhar, a vehicle bearing registration No.HP-01K-0805 was noticed coming from Shallang side. The said vehicle was on the way to Kullu. It was signalled to stop. The driver of the vehicle stopped the vehicle at once and fled away from the spot towards an apple orchard on the lower side of the road. The place was secluded one. The Investigating Officer directed HHC Hira Singh to bring the independent witnesses, who came back after about 15-20 minutes and disclosed that due to odd hours, neither any independent witness nor any passer-by was available. As such, Inspector/SHO associated HHC Kashmi Ram and HHC Hira Singh as witnesses and searched the vehicle bearing registration No. HP-01K-0805 in their presence. On front seat of the vehicle, a black bag was found and on checking, it was found containing sticks and chapatti shaped black substance. After smelling the substance, it was found to be charas. The police party also found from the dashboard of the vehicle registration certificate of the vehicle in the name of PW2 Ses Ram and a bank pass book bearing account No. 3513 pertaining to Himachal Gramin Bank having been issued in the name of accused Khekh Ram. The charas weighed 14.750 kg. The charas was put in the same bag, which was sealed in a cloth parcel with nine seals of impression ‘T’. The charas weighed 14.750 kg. The charas was put in the same bag, which was sealed in a cloth parcel with nine seals of impression ‘T’. Ruka was sent to the Police Station through HHC Hira Singh for registration of the case. The driver who fled away from the spot was stated to be having stout built, tall and aged about 30-35 years. He was described as Khekh Ram. On 20.10.2009, the owner of the vehicle Ses Ram was interrogated, who disclosed that on 3.8.2009 he had sold vehicle No. HP-01K-0805 to accused Govind Singh. On 20.10.2009, accused Govind Singh was also interrogated who disclosed that on 19.10.2009, his vehicle was taken by accused Khekh Ram for some personal work. Khekh Ram was searched by the police party in his house, but he was not found there. On 21.10.2009 he was arrested from Garsa while driving TATA SPACIO vehicle bearing registration No. HP-01K-1672. On 6.3.2010, the accused Govind Singh was also arrested. Thus, the accused persons were booked for the offences punishable under Sections 20 and 29 of the Act. The matter was investigated and the challan was put up in the trial court after completing all codal formalities. 3. The prosecution examined as many as 8 witnesses, in all, to prove its case against the accused persons. Statements of the accused persons under Section 313 Cr. P.C. were recorded, in which they pleaded that they were falsely implicated. The trial court acquitted the accused persons vide impugned judgment dated 29.12.2010. Hence, the present appeal. 4. Mr. P.M. Negi, learned Deputy Advocate General appearing for the appellant-State, has vehemently argued that the prosecution has proved its case against the accused persons beyond reasonable doubt. 5. M/s. Lakshay Thakur and Y.P.S. Dhaulta, learned Advocates, have supported the impugned judgment dated 29.12.2010. 6. We have heard learned counsel for the parties and have gone through the impugned judgment and record meticulously. 7. PW1 HHC Hira Singh testified that on 19.10.2009 at about 10.25 P.M. police party headed by SHO Police Station Kullu, Sanjeev Chauhan, went on patrolling duty. After sometime, Ahmad Syed, the then Additional Superintendent of Police, Kullu, also joined the police party as Incharge. On 20.10.2009 at about 4.00 A.M. when the police party reached at a place known as Kelti Dhar in official vehicle No. HP-03A-1281, a Maruti Alto Car was noticed coming towards the police party. After sometime, Ahmad Syed, the then Additional Superintendent of Police, Kullu, also joined the police party as Incharge. On 20.10.2009 at about 4.00 A.M. when the police party reached at a place known as Kelti Dhar in official vehicle No. HP-03A-1281, a Maruti Alto Car was noticed coming towards the police party. The SHO signalled the vehicle to stop. The driver stopped the vehicle at a distance of about 15-20 yards from the police party and fled away from the spot towards the orchard on the downside of the road. The police party tried to chase the driver with the help of search lights, but he could not be nabbed. Thereafter, he was deputed by SHO to bring local witnesses. No independent witness was available on the spot as it was early hour of the morning. Thereafter, the vehicle was searched. During search, contraband was recovered from the front seat of the vehicle and registration certificate and bank passbook of Gramin Bank issued in the name of accused Khekh Ram were also recovered from the dashboard of the vehicle. The charas weighed 14.750 kg. The sealing proceedings were completed on the spot. The case property i.e. Alto Car bearing registration No. HP-01K-0805 along with its key, RC and pass book, was taken into possession vide memo, Ext.PW1/A. He along with HHC Kashmi Ram and SI Tej Ram signed the recovery memo as witnesses. In his cross-examination, he deposed that the driver of the vehicle fled away from the spot before the police party reached near the vehicle. He had seen him from his back side. He volunteered that he had also seen his side face from a distance of about 40-50 yards. 8. PW2, Ses Ram, testified that on 13.8.2009 he sold vehicle bearing registration No. HP-01K-0805 to accused Govind Singh. 9. PW3, HC Harbans Singh, proved on record copy of special report, Ext.PW3/A. 10. PW4, HC Manoj Kumari, testified that on 20.10.2009 since no senior officer was present in the Police Station, she was officiating as SHO-cum-MHC, Police Station, Kullu. 8. PW2, Ses Ram, testified that on 13.8.2009 he sold vehicle bearing registration No. HP-01K-0805 to accused Govind Singh. 9. PW3, HC Harbans Singh, proved on record copy of special report, Ext.PW3/A. 10. PW4, HC Manoj Kumari, testified that on 20.10.2009 since no senior officer was present in the Police Station, she was officiating as SHO-cum-MHC, Police Station, Kullu. On 20.10.2009, at about 6.55 A.M., HHC Hira Singh brought Ruka to Police Station, on the basis of which, she recorded FIR, Ext.PW4/A. On the same day, at about 5.30 P.M., Inspector/SHO Sanjeev Chauhan deposited with her a parcel, Ext.P1, sealed with 9 seals of impression “T” along with sample seal “T” NCB form in triplicate, photocopy of seizure memo and vehicle bearing registration No. HP-01K-0805 along with its keys. She duly entered all the above articles in the relevant register No. 19 at Sr. No. 216. On 21.10.2009, she handed over parcel, Ext.P1 along with sample seal “T”, NCB form in triplicate, photocopy of seizure memo, photocopy of FIR and docket to Constable Kishan for being deposited at SFSL Junga vide R.C. No. 171/2009, Ext.PW4/C, who after depositing the same at SFSL Junga handed over the R.C. to her. 11. PW5, Constable Kishan Chand, testified that he had taken the case property to SFSL Junga. 12. PW6, Constable Narender Kumar, proved on record rapats, Ext.PW6/A, Ext.PW6/B and Ext.PW6/C. 13. PW7, Kapil Sharma, Assistant Chemical Examiner, NDPS Division, SFSL Junga, proved on record chemical examination report, Ext.PA. In his cross-examination, he deposed that the case property was received by him from Constable Kishan Lal. 14. PW8, Sanjeev Chauhan is material witness. He deposed that he was posted as SHO, Police Station, Kullu in the month of October, 2009. He deposed the manner in which the vehicle bearing registration No. HP-01K-0805 was intercepted at Kelti Dhar on 20.10.2009 at about 4.00 A.M. According to him, he deputed HHC Hira Singh to bring independent witness from nearby locality, who after 15-20 minutes returned back to spot and apprised him that no independent witness was available. Thereafter, he associated HHC Hira Singh, HHC Kashmi Ram and SI Tej Ram as witnesses. During search of the vehicle, the charas weighing 14.750 kg was found on the front seat of the vehicle. Thereafter, he associated HHC Hira Singh, HHC Kashmi Ram and SI Tej Ram as witnesses. During search of the vehicle, the charas weighing 14.750 kg was found on the front seat of the vehicle. On opening dashboard of the vehicle, pass book bearing account No. 3513 of Himachal Gramin Bank issued in the name of accused Khekh Ram and registration certificate of the vehicle were also found. Sealing proceedings were completed on the spot. The case property, i.e. contraband, Alto Car along with R.C., keys and bank pass-book, was taken into possession vide memo, Ext.PW1/A. Thereafter, he prepared the ruka, Ext.PW8/A and handed over the same to HHC Hira Singh for being taken to Police Station Kullu for registration of the case. During investigation, Ses Ram disclosed to the police that he had sold his vehicle bearing registration No.HP-01K-0805 to accused Govind Singh by way of an affidavit. Accused Govind Singh disclosed to the police that accused Khekh Ram had taken the said vehicle from him to bring his wife from Anni. On 21.10.2009, accused Khekh Ram was arrested when he was coming from Garsa road vide memo Ext.PW1/C. In the month of March 2010, accused Govind Singh was arrested vide memo, Ext.PW8/G. In his cross-examination conducted by learned defence counsel for accused Khekh Ram, he deposed that when the police party alighted from the police vehicle, driver of vehicle No. HP-01K-0805 fled away from the spot and jumped towards dhank (gorge) on lower side of the road. He also chased him on the road. He denied the suggestion that no bag was recovered from vehicle No. HP-01K-0805. In his cross-examination conducted by learned defence counsel for accused Govind Singh, he denied the suggestion that he forced the accused Govind Singh to depose against accused Khekh Ram and when he refused to obey, he falsely implicated him in this case. Whatever was disclosed by accused Govind Singh and Ses Ram, it was recorded in the zimini orders. 15. What emerges from appraisal of the statements of the prosecution witnesses is that on 20.10.2009 at about 4.00 A.M., when the police party was on patrolling duty at a place known as Kelti Dhar in an official vehicle No. HP-03A-1281, a Maruti Alto Car bearing registration No. HP-01K-0805 being driven by accused Khekh Ram was signalled to stop. 15. What emerges from appraisal of the statements of the prosecution witnesses is that on 20.10.2009 at about 4.00 A.M., when the police party was on patrolling duty at a place known as Kelti Dhar in an official vehicle No. HP-03A-1281, a Maruti Alto Car bearing registration No. HP-01K-0805 being driven by accused Khekh Ram was signalled to stop. On seeing the police party, he at once stopped the vehicle and ran away from the spot towards the orchard downside the road. The police party tried to chase him with the help of search lights, but he could not be nabbed. PW8, Investigating Officer directed HHC Hira Singh to bring the independent witnesses, who came back after about 15-20 minutes and apprised him that due to odd hours and the place being secluded one, no independent witness was available. As such, PW8 Investigating Officer, associated HHC Kashmi Ram and HHC Hira Singh as witnesses and searched the vehicle bearing registration No. HP-01K-0805 in their presence. On search, a black bag was found on the front seat of the vehicle and it was found containing sticks and chapatti shaped black substance, which after smelling was found to be charas. The registration certificate of the vehicle in the name of one Ses Ram and a pass book bearing account No. 3513 pertaining to Himachal Gramin Bank having been issued in the name of accused Khekh Ram were also found in the dashboard of the vehicle. The charas weighed 14.750 kg. The vehicle was owned by accused Govind Singh. 16. Mr. Lakshay Thakur, learned Advocate, has vehemently argued that the prosecution has failed to connect the accused Khekh Ram with the alleged offence. He has contended that accused Khekh Ram was booked in the present case merely on the basis of his bank pass-book allegedly found in the dash board of the vehicle bearing registration No. HP-01K-0805. He has also argued that in the ruka, Ext.PW8/A the name of the accused Khekh Ram was not mentioned. 17. It has come in the cross-examination of PW1 HHC Hira Singh that the accused Khekh Ram fled away from the spot before the police party reached near the vehicle. When search lights were thrown on him, the police party noticed his back portion. He had also seen him from his back side. He had also seen his side face from a distance of about 40-50 yards. When search lights were thrown on him, the police party noticed his back portion. He had also seen him from his back side. He had also seen his side face from a distance of about 40-50 yards. The pass book bearing account No. 3513 pertaining to Himachal Gramin Bank having been issued in the name of accused Khekh Ram was also found in the dashboard of the vehicle. 18. We have gone through the ruka, Ext.PW8/A. Towards end of Ruka, Ext.PW8/A, the name of the accused has been specifically mentioned from whom the charas weighing 14.750 kg was recovered. The learned trial court should have read the contents of the Ruka, Ext.PW8/A in its entirety. Even in the NCB form also, name of the accused Khekh Ram has been mentioned. 19. Mr. Lakshay Thakur, learned Advocate has also vehemently contended that the accused Khekh Ram has been falsely implicated by the police personnel by planting the contraband, but there is no merit in his contention taking into consideration the huge quantity of charas (14.750 kg). Moreover, he has not proved on record that there was any animosity between Khekh Ram and the police personnel, who intercepted the vehicle. Even the bank pass-book of the accused Khekh Ram was also found in the dashboard of the vehicle. The accused Khekh Ram also feigned ignorance when he was put question No.7 while recording his statement under Section 313 Cr.P.C. that Alto Car No. HP-01K-0805 was searched by PW8 Inspector Sanjeev Chauhan and during search a black and red colour bag, on which word “Sports” was printed, was found on the front seat of the vehicle. A pass book bearing account No. 3513 of Himachal Gramin Bank issued in his name, in which about Rs. 1,79,000/- were found to have been deposited upto 3.10.2009 was found in the dashboard of the vehicle. He should have given some explanation how his bank pass-book was found in Alto Car No. HP-01K-0805. There was no occasion for the police personnel to falsely implicate him. Therefore, the prosecution has proved beyond reasonable doubt that it was the accused Khekh Ram, who was driving the vehicle bearing registration No. HP-01K-0805, on 20.10.2009 at 4.00 A.M., from which the charas weighing 14.750 kg and bank pass-book bearing account No. 3513 pertaining to Himachal Gramin Bank issued in his name were recovered. 20. Therefore, the prosecution has proved beyond reasonable doubt that it was the accused Khekh Ram, who was driving the vehicle bearing registration No. HP-01K-0805, on 20.10.2009 at 4.00 A.M., from which the charas weighing 14.750 kg and bank pass-book bearing account No. 3513 pertaining to Himachal Gramin Bank issued in his name were recovered. 20. It is reiterated that the name of the accused Khekh Ram was mentioned in the Ruka as well as in the NCB form. The learned trial court has not correctly appreciated the Ruka, Ext.PW8/A wherein name of Khekh Ram has been specifically mentioned. Though, the learned trial court has observed that Ahmad Syed, the then Additional Superintendent of Police, Kullu, was not examined, but it is the quality of the evidence and not the quantity of the evidence which is required to be judged by the Court to place credence on the statement. 21. Now, as far as the accused Govind Singh is concerned, the prosecution has failed to prove the case against him. What accused Govind Singh has told the police during interrogation is that accused Khekh Ram had taken his vehicle bearing registration No. HP-01K-0805 to bring his wife from Anni on 19.10.2009. Thereafter, he moved an application under Section 457 Cr.P.C. for the release of the vehicle. Moreover, the incident is dated 20.10.2009 and Govind Singh was arrested on 19.3.2010. 22. Accordingly, the appeal is partly allowed and the impugned judgment dated 29.12.2010, rendered by the learned Special Judge, Kullu, H.P. in Sessions Trial No. 24/2010, is set aside to the extent it acquitted the accused Khekh Ram under Sections 20 and 29 of the Act. Accordingly, accused Khekh Ram is convicted for the offences punishable under Section 20 of the Act. He be produced in the Court to be heard on the quantum of sentence on 22.9.2016. The bail bonds are cancelled. The acquittal of accused Govind Singh is upheld. 23. The registry is directed to prepare the production warrant.