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2016 DIGILAW 408 (HP)

Hem Raj v. State of Himachal Pradesh

2016-04-04

P.S.RANA, SANJAY KAROL

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JUDGMENT : Sanjay Karol, J. Appellant-convict Hem Raj, hereinafter referred to as the accused, has assailed the judgment dated 17.4.2014, passed by Special Judge, Mandi, Himachal Pradesh, in Sessions Trial No.19/2011, titled as State of Himachal Pradesh v. Hem Raj, whereby he stands convicted of the offence punishable under the provisions of Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act) and sentenced to undergo rigorous imprisonment for a period of ten years and pay fine of Rs.1,00,000/- and in default thereof to further undergo imprisonment for one year. 2. It is the case of prosecution that on 22.1.2011, a police party, comprising of HC Jaswant Singh (PW-9), Constables Dhameshwar Singh (PW-8), Kashmir Singh and Narpat Ram, headed by ASI Ram Lal (PW-10), was on patrol duty. At 5 p.m., they had laid a Naaka at a place known as Kotla Nallah, NH-21. At about 5.30 p.m., accused, who was coming on foot, from the Aut side, seeing the police party tried to flee away. On suspicion, he was apprehended. On suspicion that he might be carrying some contraband substance, after informing him of his statutory right and obtaining his consent (Ex.PW- 9/A), he was searched. From the knee caps worn by the accused on his legs, contraband substance in the shape of sticks, which appeared to be Charas, was recovered, which upon weighment was found to be 1.600 kgs. Contraband substance alongwith knee caps was sealed with 12 seals of seal impression ‘R’ and taken into possession vide Memo (Ex.PW-9/B). NCB form (Ex. PW- 10/A) was filled up on the spot. Rukka (Ex.PW-8/C), so carried by Constable Dhameshwar Singh, led to registration of FIR No.23, dated 22.1.2011 (Ex.PW-7/A) by SI Durga Dass at Police Station, Sadar (Mandi), Himachal Pradesh. With the file being taken to the spot, accused was arrested vide Memo (Ex.PW-9/C) and further proceedings completed. Contraband substance was produced before Inspector Surinder Pal, who resealed the same with six seals of seal impression ‘S’ and deposited it with MHC Thakur Singh (PW-3). The sealed parcel was sent for chemical analysis, through Constable Parma Nand and the same alongwith the report was brought back by Constable Sukh Ram (PW-5). Special Report (Ex.PW-1/A) was also sent to the Superior Officer. The sealed parcel was sent for chemical analysis, through Constable Parma Nand and the same alongwith the report was brought back by Constable Sukh Ram (PW-5). Special Report (Ex.PW-1/A) was also sent to the Superior Officer. With the completion of investigation, which prima facie revealed complicity of the accused in the alleged crime, challan was presented in the Court for trial. 3. Accused was charged for having committed an offence punishable under the provisions of Section 20 of the Act, to which he did not plead guilty and claimed trial. 4. In order to establish its case, prosecution examined as many as 11 witnesses and statement of the accused, under the provisions of Section 313 of the Code of Criminal Procedure was also recorded, in which he took plea of innocence and false implication. 5. Based on the testimonies of witnesses and the material on record, trial Court convicted the accused of the charged offence and sentenced him, as aforesaid. Hence, the present appeal by the accused. 6. Assailing the judgment, learned counsel for the accused has made the following submissions: (a) nonassociation of independent witnesses has resulted into violation of the mandatory provisions of Section 100 of the Code of Criminal Procedure, (b) contradiction in the testimony of police officials Constable Dhameshwar Singh and ASI Ram Lal, on the question of association of independent witnesses has rendered the testimonies of the police officials to be unbelievable and the witnesses unworthy of credence, (c) factum of recovery of contraband substance from the knee caps, allegedly worn, by the accused, on his legs, stands belied, (d) absence of reference of knee caps in the report of the Chemical Analyst (Ex. PW-10/D) leads to further inference that the case property sent for analysis was other than the one which was actually recovered by the police, (e) inaction on the part of the Investigating Officer, in taking action against the persons, who refused to be associated as witnesses, has further rendered the prosecution case to be doubtful. 7. On the other hand Mr. V.S. Chauhan, learned Additional Advocate General, has supported the judgment for the reasons set out therein. He has minutely taken us through the testimonies of the witnesses and other incriminating material on record. 8. Undoubtedly, no independent witness has been associated by the police, in carrying out the search and seizure operations. 7. On the other hand Mr. V.S. Chauhan, learned Additional Advocate General, has supported the judgment for the reasons set out therein. He has minutely taken us through the testimonies of the witnesses and other incriminating material on record. 8. Undoubtedly, no independent witness has been associated by the police, in carrying out the search and seizure operations. The issue as to whether in every case, and under the all circumstances, police must associate independent witnesses, while carrying out search and seizure operations, is no longer res integra. 9. It is also a settled proposition of law that sole testimony of police official, which if otherwise is reliable, trustworthy, cogent and duly corroborated by other admissible evidence, cannot be discarded only on the ground that he is a police official and may be interested in the success of the case. It cannot be stated as a rule that a police officer can or cannot be a sole eye-witness in a criminal case. It will always depend upon the facts of a given case. If the testimony of such a witness is reliable, trustworthy, cogent and if required duly corroborated by other witnesses or admissible evidences, then the statement of such witness cannot be discarded only on the ground that he is a police officer and may have some interest in the success of the case. It is only when his interest in the success of the case is motivated by overzealousness to an extent of his involving innocent people, in that event, no credibility can be attached to the statement of such witness. 10. It is not the law that Police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption applies as much in favour of a police officer as any other person. There is also no rule of law which lays down that no conviction can be recorded on the testimony of a police officer even if such evidence is otherwise reliable and trustworthy. Rule of prudence may require more careful scrutiny of their evidence. If such a presumption is raised against the police officers without exception, it will be an attitude which could neither do credit to the magistracy nor good to the public, it can only bring down the prestige of police administration. 11. Rule of prudence may require more careful scrutiny of their evidence. If such a presumption is raised against the police officers without exception, it will be an attitude which could neither do credit to the magistracy nor good to the public, it can only bring down the prestige of police administration. 11. Wherever, evidence of a police officer, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and absence of some independent witness of the locality does not in any way affect the creditworthiness of the prosecution case. No infirmity attaches to the testimony of the police officers merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. Such reliable and trustworthy statement can form the basis of conviction. [See: Govindaraju alias Govinda v. State by Srirampuram Police Station and another, (2012) 4 SCC 722 ; Tika Ram v. State of Madhya Pradesh, (2007) 15 SCC 760; Girja Prasad v. State of M.P., (2007) 7 SCC 625 ); and Aher Raja Khima v. State of Saurashtra, AIR 1956]. 12. Apex Court in Tahir v. State (Delhi), (1996) 3 SCC 338 , dealing with a similar question, held as under:- "6. ... .In our opinion no infirmity attaches to the testimony of the police officials, merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. The Rule of Prudence, however, only requires a more careful scrutiny of their evidence, since they can be said to be interested in the result of the case projected by them. Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case." 13. In view of the aforesaid statement of law, we shall now examine the testimony of police officials. 14. In view of the aforesaid statement of law, we shall now examine the testimony of police officials. 14. That the police party, headed by ASI Ram Lal, had left Police Post, Pandoh, falling within the jurisdiction of Police Station, Sadar (Mandi), on a routine patrol duty, stands evidently established not only through the testimony of Constable Dhameshwar Singh, Constable Jaswant Singh and ASI Ram Lal, but also Om Prakash (Pw- 6), who made entry vide Rapt No.18, dated 22.1.2011, so proved as Ex.PW-6/A. Presence of the police party in the area, where the Naaka was set up, thus, stands established beyond reasonable doubt. 15. ASI Ram Lal categorically states that at about 5 p.m., police party had set up a Naaka on NH-21, at a place known as Koti Nallah. Such version stands corroborated, both by Constables Dhameshwar and Jaswant Singh. Significantly, from the line of crossexamination, it is apparent that the accused has not disputed such fact. It has also come on record through the testimony of ASI Ram Lal that Koti Nallah is at a distance of 40 kms from Aut, nearest inhabited area. Police officials further deposed that the place where the Naaka was set up, there is no habitation. They have, in one voice, deposed that no independent witnesses were available on the spot. 16. ASI Ram Lal further states that at about 5.15 p.m., police party saw the accused coming on foot from Aut side. Seeing the police party, accused got frightened and hastily turned back and on suspicion was apprehended. He was searched in the presence of police officials. Prior thereto, he was informed of his statutory rights vide Memo (Ex.PW-9/A). Vide Consent Memo (Ex.PW-9/A) accused consented to be searched by the police officials present on the spot. During search, from the knee caps worn by the accused on his both legs, contraband substance, which appeared to be Charas, in the shape of sticks, was recovered. Three packets each from each of the knee caps were recovered and upon weighment found to be 1.6 kgs. All the six packets, alongwith knee caps, were wrapped and sealed with seal impression ‘R’ at 12 places. NCB form (Ex.PW-10/A), in triplicate, was filled up. Rukka (Ex.PW-8/C) sent through Constable Dhameshwar Singh, led to registration of FIR No.23, dated 22.1.2011 (Ex.PW-7/A). Contraband substance was taken into possession vide Memo (Ex.PW- 9/B). All the six packets, alongwith knee caps, were wrapped and sealed with seal impression ‘R’ at 12 places. NCB form (Ex.PW-10/A), in triplicate, was filled up. Rukka (Ex.PW-8/C) sent through Constable Dhameshwar Singh, led to registration of FIR No.23, dated 22.1.2011 (Ex.PW-7/A). Contraband substance was taken into possession vide Memo (Ex.PW- 9/B). Accused was arrested vide Memo (Ex.PW-9/C) and information thereof, furnished to his brother. With the case file being brought to the spot by Constable Dhameshwar Singh, further proceedings were completed. Whereafter, the case property was entrusted to Inspector Surinder Pal, who resealed the same vide Memo (Ex.PW- 10/C). Special Report (Ex.PW-1/A) was sent to the Superintendent of Police, Mandi. With the receipt of report of the Chemical Analyst (Ex.PW-10/D), challan was presented in Court by Inspector Surinder Pal. 17. On material facts, testimony of this witness stands corroborated by Constables Dhameshwar Singh and Jaswant Singh. Also, the witnesses have withstood the test of cross-examination. Their testimonies are worthy of credence and witnesses trustworthy and reliable. 18. Yes, there is a contradiction in the statements of ASI Ram Lal, and Constables Dhameshwar Singh and Jaswant Singh, which is with regard to association of the Pradhan and Members of the Gram Panchayat. Whereas ASI Ram Lal wants the Court to believe that his request to the Pradhan and the Members of the local Panchayat for joining investigation was turned down. Dhameshwar Singh states that no request was made. Significantly, Constable Jaswant Singh is silent on this aspect. Now, the contradiction, in our considered view, is not material, rendering the genesis of the prosecution story of having recovered the contraband substance from the conscious possession of the accused to be doubtful. Significantly, accused is a resident of Nurpur, District Kangra, a far off place from Aut, District Mandi. Both places are at the farthest end of the Districts. In his statement recorded under the provisions of Section 313 of the Code of Criminal Procedure, accused admits his presence on the spot, which fact is also not disputed, as is evident from the line of cross-examination of prosecution witnesses. Judicial notice can be taken of the fact that Aut, which is on the boundary of Mandi and Kullu Districts, is prone to trafficking of drugs. What was the accused doing on the spot, remains unexplained on record. His defence of false implication cannot be said to have been probablized on record. Judicial notice can be taken of the fact that Aut, which is on the boundary of Mandi and Kullu Districts, is prone to trafficking of drugs. What was the accused doing on the spot, remains unexplained on record. His defence of false implication cannot be said to have been probablized on record. Simply because police did not take any action against the persons, who expressed their reservation, would also not render the testimonies of police officials to be doubtful. On the question of recovery of the contraband substance, there is no doubt. On such fact their version is clear, cogent and consistent. 19. There was no reason for the police to have falsely implicated the accused. It is not the case of the accused that police harboured any animosity resulting into false implication. He claims to be a resident of Nurpur, District Kangra, a far off place. His presence on the spot remained unexplained by him. 20. It is true that the accused is only to probablize his defence and not prove his case beyond reasonable doubt. But then, in the instant case, there is nothing on record to such effect. 21. In Dharampal Singh v. State of Punjab, (2010) 9 SCC 608 , the Hon’ble Supreme Court of India, held that the initial burden of proof of possession lies on the prosecution and once it is discharged legal burden would shift on to the accused. Standard of proof expected from the prosecution is to prove possession beyond all reasonable doubt but what is required to prove innocence by the accused would be preponderance of probability. Once the plea of the accused is found probable, discharge of initial burden by the prosecution will not nail him with offence. 22. Offences under the Act, being more serious in nature higher degree of proof is required to convict an accused. It needs no emphasis that the expression “possession” is not capable of precise and completely logical definition of universal application in context of all the statutes. “Possession” is a polymorphous word and cannot be uniformly applied, it assumes different colour in different context. In the context of Section 18/20 of the Act once possession is established, the accused who claims that it was not a conscious possession has to establish it because it is within his special knowledge. Section 54 of the Act raises presumption of possession of illicit articles. 23. In the context of Section 18/20 of the Act once possession is established, the accused who claims that it was not a conscious possession has to establish it because it is within his special knowledge. Section 54 of the Act raises presumption of possession of illicit articles. 23. Act creates legal fiction and presumes the person in possession of illicit articles to have committed the offence in case he fails to account for the possession satisfactorily. Possession is a mental state and Section 35 of the Act gives statutory recognition to culpable mental state. It includes knowledge of fact. The possession, therefore, has to be understood in the context thereof and when tested on this anvil, we find that the accused has not been able to account for satisfactorily the possession of Charas. Once possession is established, the Court can presume that the accused had culpable mental state and had committed the offence. 24. In somewhat similar facts, the Hon’ble Supreme Court of India, had the occasion to consider this question in Madan Lal and another vs. State of H.P., 2003 (7) SCC 465, wherein it has been held that once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles. (See also: Dehal Singh v. State of Himachal Pradesh, (2010) 3 SCC (Cri) 1139). 25. In the present case, not only possession but conscious possession has been established. It has not been shown by the accused that the possession was not conscious in the logical legal backdrop of Sections 35 and 54 of the Act. 26. It is a settled position of law that mere non-association of independent witnesses, ipso facto, would not render the prosecution case to be fatal. Compliance of Section 100 of the Code of Criminal Procedure is not mandatory, as is urged by the learned counsel for the accused. Police had no reason to falsely implicate the accused. The accused was found to have concealed packets of Charas in the knee caps worn by him. 27. Compliance of Section 100 of the Code of Criminal Procedure is not mandatory, as is urged by the learned counsel for the accused. Police had no reason to falsely implicate the accused. The accused was found to have concealed packets of Charas in the knee caps worn by him. 27. Now coming to the recovery of the contraband substance, we find that the same was recovered and sealed on the spot. It was resealed with seal impression ‘S’ at the Police Station by the concerned SHO. Testimonies of ASI Ram Lal and Inspector Surinder Pal are clear to such effect. Both filled up the respective columns of NCB form (Ex.PW-10/A), bearing seal impressions ‘R’ and ‘S’. The specimen seal impression, memo of sealing and resealing were entered in the Register (Ex.PW-3/A) at Serial No.1107. MHC Thakur Singh (PW-3) has clarified that so long as the case property remained with him it was intact. Further, he handed over the case property to Constable Parma Nand (PW-4), who vide Road Certificate (Ex.PW-3/B) took the same and deposited it in the Laboratory. He has also testified that the parcel bore 12 seals of seal impression ‘R’ and six seals of impression ‘S’. He also deposed that so long as the property remained with him, it remained intact. Seals on the parcel examined in the Laboratory, as is evident from report (Ex.PW-10/D), tallies with the number of seals. Case property was brought back from the Laboratory and re-deposited with the MHC by Sukh Ram (PW-5). Hence, the case property produced in the Court stands duly proved to be the one which was recovered on the spot, as is also evident from the testimony of Inspector Surinder Pal. Significantly, the case property, as produced in Court, was opened, in which four knee caps (Ex.P-3 to P-6) were there. No doubt, in the report of the Laboratory, there is no reference of knee caps, but then the very same parcel, which was handed over by the Laboratory to the police, was produced in Court. 28. It be also observed that there is reference in the Rukka (Ex. PW-8/C) as also the recovery memo (Ex.PW9/B) of the contraband substance recovered from the knee caps worn by the accused. Hence, mere non-mentioning of the knee caps in the documents, would not render the prosecution case to be fatal. 29. 28. It be also observed that there is reference in the Rukka (Ex. PW-8/C) as also the recovery memo (Ex.PW9/B) of the contraband substance recovered from the knee caps worn by the accused. Hence, mere non-mentioning of the knee caps in the documents, would not render the prosecution case to be fatal. 29. Significantly, there is no discrepancy with regard to the weight of the contraband substance, number of seals, NCB form and the contraband substance/Charas recovered. 30. Thus, by way of link evidence, the case property recovered by the police, so produced in Court, stands established to be the one which was actually examined by the Chemical Analyst. 31. Reliance on a decision rendered by Hon’ble the Supreme Court of India, in State of Punjab v. Partap Singh, 2004 Drugs Cases (Narcotics) 104, is misconceived, for the apex Court was dealing with a case where the Courts below concurrently held the prosecution to have violated Section 50 of the Act and non-association of independent witnesses, despite availability in the vicinity, was an additional fact, which weighed with the Bench in not interfering with the view taken by the Courts. 32. From the material placed on record, it stands established by the prosecution witnesses that the accused is guilty of having committed the offence charged for. There is sufficient, convincing, cogent and reliable evidence on record to this effect. The circumstances stand conclusively proved by unbroken chain of unimpeachable testimony of the prosecution witnesses. The guilt of the accused stands proved beyond reasonable doubt to the hilt. The chain of events stand conclusively established and lead only to one conclusion, i.e. guilt of the accused. Circumstances when cumulatively considered fully establish completion of chain of events, indicating the guilt of the accused and no other hypothesis other than the same. It cannot be said that accused is innocent or not guilty or that he has been falsely implicated or that his defence is probable or that the evidence led by the prosecution is inconsistent, unreliable, untrustworthy and unbelievable. It cannot be said that the version narrated by the witnesses in Court is in a parrot-like manner and hence is to be disbelieved. 33. It cannot be said that the version narrated by the witnesses in Court is in a parrot-like manner and hence is to be disbelieved. 33. In our considered view, prosecution has been able to establish the guilt of the accused, beyond reasonable doubt, by leading clear, cogent, convincing and reliable piece of evidence, that the accused was found in conscious and exclusive possession of Charas. 34. For all the aforesaid reasons, we find no reason to interfere with the judgment passed by the trial Court. The Court has fully appreciated the evidence placed on record by the parties. There is no illegality, irregularity, perversity in correct and/or in complete appreciation of the material so placed on record by the parties. Hence, the appeal is dismissed. Appeal stands disposed of, so also pending applications, if any.