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Himachal Pradesh High Court · body

2016 DIGILAW 50 (HP)

Naresh Kumar v. State of H. P.

2016-01-06

SANJAY KAROL

body2016
JUDGMENT : SANJAY KAROL, J. 1. Appellants-convict Naresh Kumar, Hariman Sharma, and Sandeep Kumar, hereinafter referred to as the accused, have assailed the judgment dated 7.3.2015, passed by Special Judge (Additional Sessions Judge-II), Shimla, Himachal Pradesh, in Sessions Trial No.17-S/7 of 2014/13, titled as State of Himachal Pradesh v. Naresh Kumar and others, whereby they stand convicted for the offence, punishable under the provisions of Sections 18 & 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act), and Section 39 of the H.P. Excise Act, 2011 (hereinafter referred to as the Excise Act), and each of the accused stands sentenced as under: Section Sentence 18 of the Act Simple imprisonment for a period of four years and fine of Rs.20,000/-, and in default thereof to further undergo simple imprisonment for a period of one year. 20 of the Act Simple imprisonment for a period of four years and fine of Rs.20,000/-, and in default thereof to further undergo simple imprisonment for a period of one year. 39 of the Excise Act Simple imprisonment for a period of one year and fine of Rs.25,000/-, and in default thereof to further undergo simple imprisonment for a period of three months. All the sentences have been ordered to run concurrently. 2. It is the case of prosecution that on 4.5.2013, at about 4 p.m., a police party, headed by SI Chet Ram (PW-14) and comprising of ASI Liaq Ram (PW-2), HC Sahi Ram (PW- 4) and Constable Kewal Krishan (PW-9), was present at a palce known as Apple Control room, Fagu, where Chet Ram received a secret information that business of contraband substance was being carried out at the IBX Dhaba, situate on the National Highway at a place known as Rewag. The information was reduced into writing and sent to the Superior Officer. Raiding party was constituted and in the presence of Atma Ram (PW-1) and Sunder Lal (not examined), raid was conducted. Accused persons, as employees of Laxmi Kant (PW- 3), were running the Dhaba. Accused were given option of being searched before a Magistrate or a Gazetted Officer. Police searched the premises and found 500 grams of charas; 2.250 kgs and 1.250 kgs (total 3.500 kgs) of Poppy straw; ten bottles of English wine (Green Level), each containing 750 ml and 20 bottles of country liquor of Suroor brand, kept inside the Dhaba. Accused were given option of being searched before a Magistrate or a Gazetted Officer. Police searched the premises and found 500 grams of charas; 2.250 kgs and 1.250 kgs (total 3.500 kgs) of Poppy straw; ten bottles of English wine (Green Level), each containing 750 ml and 20 bottles of country liquor of Suroor brand, kept inside the Dhaba. Charas, poppy straw and liquor were made into separate parcels and sealed separately with seven seals of seal impression =R' and taken into possession vide Memo (Ex.PW-1/C & 1/E). Impression of seal =R' was also taken on a piece of cloth (Ex.PW- 1/D). NCB form (Ex.PW-6/E & 12/E) was filled up on the spot. HC Sahi Ram (PW-4) took the Ruka (Ex.PW-12/A), on the basis of which FIR No.6 dated 4..5.2013 (Ex.PW-12/B), for commission of offences, punishable under Sections 15 & 20 of the Act and 39 of the Excise Act, was registered at Police Station, CID, District Shimla, Himachal Pradesh. The contraband substance was produced before Inspector Kamal Chand (PW-12), who resealed the same with his own seal of seal impression =N' and deposited with MHC Prakash Chand (PW-6). Charas, Poppy straw and samples of English and Country liquor were taken for chemical analysis by Constable Joginder Singh (PW-7). Special Report (Ex. PW-13/A) was also sent to the Superior Officer, which was received by HC Aditya Ram (PW-13). On receipt of the report of the Chemical Examiner (Ex.PW-14/C) and 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. All the accused were charged for having committed offences, punishable under the provisions of Sections 18 & 20 of the Act and 39 of the Excise Act, to which they did not plead guilty and claimed trial. 4. In order to establish its case, prosecution examined as many as 14 witnesses and statements of the accused, under the provisions of Section 313 of the Code of Criminal Procedure, were also recorded, in which they took plea of innocence and false implication. 5. Based on the testimonies of witnesses and the material on record, trial Court convicted all the accused of the charged offences. Hence, the present appeal by the accused. 6. 5. Based on the testimonies of witnesses and the material on record, trial Court convicted all the accused of the charged offences. Hence, the present appeal by the accused. 6. Having heard learned counsel for the parties as also perused the record, I am of the considered view that no case for interference is made out in the present appeal. It is found that the judgment rendered by the trial Court is based on complete, correct and proper appreciation of evidence (documentary and ocular) so placed on record. There is neither any illegality/infirmity nor any perversity with the same, resulting into miscarriage of justice. Also, there is proper reasoning. 7. From the conjoint reading of the testimonies of ASI Laiq Ram (PW-2), Constable Kwal Krishan (PW-9), ASI Kalyan Singh (PW-10) and SI Chet Ram (PW-14), it is apparent that SI Chet Ram received secret information, which was reduced into writing and information sent to the Superior Officer. Constable Kewal Krishan took the Special Report to the office of the Superintendent of Police, CID. Thus, there is sufficient compliance of provisions of Section 42 of the Act. Noticeably, ocular version stands corroborated by supporting document (Ex.PW-9/A). 8. By leading credible evidence, prosecution has to establish that the contraband substance in question stood recovered from the conscious possession of the accused. This has to be beyond reasonable doubt. It is a settled position of law that with the discharge of the initial burden, onus to disprove the same, in terms of provisions of Section 35 of the Act, would rest upon the accused. 9. Now, it is noticed that the contraband substance was seized vide seizure memos (Ex.PW-1/C & 1/E), which stands witnessed by independent witnesses Atma Ram (PW-1) and Sunder Lal. These witnesses were associated by the police party, as is so disclosed by SI Chet Ram. Also, police official Sahi Ram (PW-4) was present on the spot. From the reading of the testimonies of these witnesses, it is evident that SI Chet Ram formed a raiding party and conducted the raid. Fard Jamatalashi (Ex.PW-1/A) was also prepared. Police found the charas to have been concealed inside the bed box in one of the rooms of the Dhaba. It was in the shape of sticks and balls. Also, poppy straw kept in two carry bags (red and green coloured) was recovered. Fard Jamatalashi (Ex.PW-1/A) was also prepared. Police found the charas to have been concealed inside the bed box in one of the rooms of the Dhaba. It was in the shape of sticks and balls. Also, poppy straw kept in two carry bags (red and green coloured) was recovered. It was weighed and total weight was found to be 3.5 kgs. Also, ten bottles of English wine (Green Level) and 20 bottles of Country liquor (Suroor) were recovered. They were kept in separate cartons. The contraband substance was sealed separately with seal of impression =R' and seized vide memos (Ex.PW-1/C & 1/E). Impression of the seal was also taken on a piece of cloth (Ex.PW-1/D). Independent witness Atma Ram has duly supported the prosecution case on this count. 10. Vehemently, it is argued that there is contradiction, with regard to the place from where the recovery stood effected. Confusion arose from the testimony of HC Sahi Ram, according to whom, recovery was effected from the ground floor, unlike the version of other witnesses, who state that the recovery was effected from the third floor. We do not find this contradiction to be material at all, for presence of the accused on the spot stands duly established by the witnesses. It is also not disputed, as is evident from the line of cross-examination. Polie had no animosity against the accused. 11. No doubt, the accused were employees of Laxmi Kant (PW-3), but it is evident from his testimony that the accused used to run the Dhaba and he learnt about recovery of the contraband substance lateron. Even this witness states that Dhaba is being run on the third and fourth storeys, which fact is so admitted by Atma Ram. Now, the fact of the matter is that Court below has succinctly dealt with this issue in Para-47 of the judgment. When Paras-47, 48 & 49 of the judgment of the trial Court are perused, one finds the findings recorded therein to have been borne out from the record. What matters is how one counts the floors, is it from the level of the National Highway or the base of the building, which is much below the road level. Two floors of the building are at the level of the National Highway, whereas the other floors are below the National Highway. 12. What matters is how one counts the floors, is it from the level of the National Highway or the base of the building, which is much below the road level. Two floors of the building are at the level of the National Highway, whereas the other floors are below the National Highway. 12. When, testimonies of the witnesses are minutely read, one finds only confusion and certainly not contradiction. The confusion does not render the case to be doubtful. With the prosecution having discharged its burden of having recovered the contraband substance from the exclusive and conscious possession of the accused, record reveals the burden to disprove the same, cast upon the accused, remains undischarged. 13. There is also some contradiction with regard to the breaking of the lock of the place from where the contraband substance was recovered. Attention is drawn to the testimony of Atma Ram and Laxmi Kant. The contradiction cannot be said to be material, rendering the prosecution case to be fatal. After all, there is a time gap between the recovery of the contraband substance and the statement made in the Court. 14. It is further urged that the recovery was effected from the floor, which was in possession of the owner of the building, i.e. Atma Ram. It is a matter of record, as stands proved by Purshottam Sharma (PW-8) that the third and the fourth floors of the bulding are let out by Atma Ram to Laxmi Kant. Reference of the floors in the statement is made by counting the number of storeys from the level below the road. Hence, there is no contradiction at all. 15. It is not the case of the accused that the contraband substance actually belonged to Laxmi Kant or Atma Ram. Prosecution has been able to establish that the accused were running the Dhaba. 16. Not only that, Court finds the prosecution case to have been supported by other corroborative evidence. FIR (Ex.PW-12/B) stood promptly recorded, as is evident from the testimony of HC Sahi Ram and Inspector Kamal Chand. Also Special Report (Ex.PW- 13/A) stood sent to the Superior Authorities, which fact is evident from the testimony of HC Aditya Ram. 17. 16. Not only that, Court finds the prosecution case to have been supported by other corroborative evidence. FIR (Ex.PW-12/B) stood promptly recorded, as is evident from the testimony of HC Sahi Ram and Inspector Kamal Chand. Also Special Report (Ex.PW- 13/A) stood sent to the Superior Authorities, which fact is evident from the testimony of HC Aditya Ram. 17. Contraband substance was resealed, as is evident from the testimony of Inspector Kamal Chand, who states that upon receipt of the contraband substance, he resealed the same with his own seal of seal impression =N' and resealing certificate (Ex.PW- 12/F) was prepared to such effect. From the testimony of HC Prakash Chand and Constable Joginder Singh, it is apparent that the contraband substance was deposited in the Malkhana and entries in the Malkhana Register ( (Ex.PW6/A & 6/B) were also made. NCB form (Ex.PW-6/#E) also stood deposited with him. The case property was sent to the Forensic Science Laboratory, Junga, through Road Certificate. Report of the Expert (Ex.PW- 14/C) reveals that the case property, sealed with separate seal impressions, was received in the Laboratory. The seals were intact. The witnesses have deposed that the case property remains safe and untampered. 18. It is further urged that in the statement, under the provisions of Section 313 of the Code of Criminal Procedure, no specific question on recovery of the contraband substance was put to the accused. The contention only needs to be repelled. Perusal of the statement, under the provisions of Section 313 of the Code of Criminal Procedure, reveals that the accused was informed of the recovery of the contraband substance vide seizure memos (Ex.PW-1/C & 1/E) and recovery of the contraband substance from the Dhaba, where the accused were found. As such, the accused were fully aware of the prosecution case. 19. Contention that the accused was charged under different Section of the Act, is also of no merit. Simply because wrong Section is referred to in the chargesheet, itself cannot be a ground to acquit the accused, more specifically when no prejudice is caused, as they were fully aware of the prosecution case. 20. 19. Contention that the accused was charged under different Section of the Act, is also of no merit. Simply because wrong Section is referred to in the chargesheet, itself cannot be a ground to acquit the accused, more specifically when no prejudice is caused, as they were fully aware of the prosecution case. 20. Submission to the effect that non-production of the original seal would render the prosecution case to be fatal, in the light of the law laid down in State of H.P. v. Sunder Singh, 2014 (2) HLJ 1293, is tenable in law, in view of the fact that the prosecution has proved on record and samples of the seal (Ex.PW-1/D). 21. From the material placed on record, it stands established by the prosecution witnesses that the accused are guilty of having committed the offences 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 are innocent or not guilty or that they have been falsely implicated or that their 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. 22. In my 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. 23. In the alternative, learned counsel for the accused has submitted that the sentenced imposed by the trial Court is on the higher side and that the same be reduced to imprisonment for a period of 2½ years. Keeping in view the nature of the offence and the quantity so recovered from the accused persons, no case for reduction in sentence is made out. 24. For all the aforesaid reasons, we find no reason to interfere with the judgment passed by the trial Court. Keeping in view the nature of the offence and the quantity so recovered from the accused persons, no case for reduction in sentence is made out. 24. 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 application (s), if any.