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Himachal Pradesh High Court · body

2016 DIGILAW 825 (HP)

Dharmender Singh v. State of H. P.

2016-05-17

RAJIV SHARMA

body2016
JUDGMENT : Rajiv Sharma, J. This appeal is instituted against the judgment dated 29.10.2014, rendered by the learned Special Judge (III), Mandi, H.P., in Sessions trial No. 34/2012, 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 ND & PS Act), has been sentenced to rigorous imprisonment for a term of seven years along with fine of Rs. 1,00,000/- and in default of payment of fine, he 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 13.6.2012, HC Jagdish Chand, HHC Tej Ram, HHC Hoshiyar Singh, Const. Jaswant Singh and Const. Ravi Kumar were on patrolling duty at place Jalogi. At about 7:30 AM, accused was seen coming from Kullu side on foot. He tried to run away. He was apprehended. Accused was carrying black and blue colour bag on his right shoulder. It was a secluded place, therefore, no independent witness was available in the vicinity. The accused was apprised of his legal right to get himself searched either before a Magistrate or a Gazetted Officer. The accused consented to be searched by the police. The personal search of the accused was carried out. The bag of the accused was also searched. One transparent envelope was found inside the nicker and inside that envelope, ball shaped and chapatti numa charas was recovered. It weighed 700 grams. The charas was put back in the same manner inside the bag and it was sealed with seal impression “U”. NCB form in triplicate was prepared. The seal after use was handed over to HHC Tej Ram. Rukka was sent to the Police Station and FIR was registered. 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 nine witnesses. The accused was also examined under Section 313 Cr.P.C. His case is of denial simplicitor. The learned trial Court convicted and sentenced the accused, as noticed hereinabove. Hence, this appeal. 4. Mr. Sanjeev Kuthiala, Advocate, for the accused has vehemently argued that the prosecution has failed to prove its case against the accused. The accused was also examined under Section 313 Cr.P.C. His case is of denial simplicitor. The learned trial Court convicted and sentenced the accused, as noticed hereinabove. Hence, this appeal. 4. Mr. Sanjeev Kuthiala, Advocate, for the accused has vehemently argued that the prosecution has failed to prove its case against the accused. On the other hand, Mr. Parmod Thakur, Addl. Advocate General for the State has supported the judgment of the trial Court dated 29.10.2014. 5. I have heard the learned counsel for both the sides and have also gone through the judgment and records of the case carefully. 6. HHC Tej Ram, PW-1 testified that he alongwith other police officials was present at Jalogi Mor, NH-21 in connection with Naka Bandi. They proceeded from the Police Station at about 4:45 PM. One person was seen coming from Kullu side on foot. He tried to run away. He was apprehended. The place was isolated and secluded. No witness was present. The bag was searched. It contained charas. The substance was put back in the envelope along with the nikkar in the bag. The bag was put in a parcel and sealed with ten seals of seal impression “U”. NCB form in triplicate was filled in. Rukka was scribed by the I.O. and sent through Constable Ravi Kumar to the Police Station. He denied the suggestion in his cross-examination that there was one Nitish Dhaba towards Aut side at a distance of 10 meters. He denied that Thakur Tea Stall was situated at the spot. The Wind Power Station was about one and a half kilometers away. Forest Nursery was at a distance of 500 meters towards Kullu side. No vehicle passed at that time, however, on National Highway, the vehicles used to ply. He also denied that the accused was not informed of his legal right to be searched either before a Magistrate or a Gazetted Officer. 7. HHC Prakash Chand PW-2 deposed that he was posted on general duty at Police Station Aut. On 18.6.2012, MHC Khem Chand handed over to him one sealed parcel sealed with ten seals of seal impression “U” and ten seals of seal impression “N”, stated to be containing 700 grams of charas along with sample seals “U” and “N”. He took the same to FSL, Junga. 8. On 18.6.2012, MHC Khem Chand handed over to him one sealed parcel sealed with ten seals of seal impression “U” and ten seals of seal impression “N”, stated to be containing 700 grams of charas along with sample seals “U” and “N”. He took the same to FSL, Junga. 8. HHC Hoshiyar Singh, PW-3 deposed that on 8.7.2012, he went to FSL, Junga to bring the case property. 9. HC Jagdish Chand, PW-4 also deposed the manner in which the accused was apprehended at Jalogi Mor at 7:30 AM. All the codal formalities were completed at the spot. He conducted search of the bag. He also recorded the statements of the witnesses. He scribed the rukka Ext. PW-4/B. It was sent to the Police Station through Const. Ravi Kumar for registration of the FIR at 8:30 AM. In his cross-examination, he deposed that Jalogi Mor was at a distance of six kms. from Aut. He admitted that there was one Nitish Dhaba at a short distance from the spot. He also admitted that Thakur Tea stall was at a distance of 10 meters from the spot. Wind Power Station was at a distance of one and a half kilometer. Forest Nursery was situated just 10 meters from Jalogi Mor. 10. HC Khem Singh, PW-5 deposed that on 13.6.2012, SI/SHO Anil Kumar deposited with him one sealed parcel sealed with ten seals of “U” and resealed with ten seals of “N”, stated to be containing 700 grams of charas. He entered the same in the malkhana register at Sr. No. 42. 11. SI Anil Kumar, PW-7 deposed that on 13.6.2012, Const. Ravi Kumar brought rukka Ext. PW-4/B. FIR Ext. PW-7/A was registered. On 13.6.2012 at about 12:20 PM, HC Jagdish brought case property in a sealed parcel sealed with ten seals of “U” along with NCB form in triplicate, sample seal “U” along with accused to the Police Station. He resealed the case property with ten seals of “N” and also filled in column Nos. 9 to 12 of the NCB form Ext. PW-4/A. He also embossed seal “N” on it and sample seal “N” was taken on cloth vide Ext. PW-7/C. 12. Const. Ravi Kumar, PW-8 also deposed the manner in which the accused was apprehended at Jalogi Mor. He took the rukka and handed over the same to SHO Anil Kumar. FIR was registered. PW-4/A. He also embossed seal “N” on it and sample seal “N” was taken on cloth vide Ext. PW-7/C. 12. Const. Ravi Kumar, PW-8 also deposed the manner in which the accused was apprehended at Jalogi Mor. He took the rukka and handed over the same to SHO Anil Kumar. FIR was registered. In his cross-examination, he deposed that Jalogi Mor was on National Highway. They reached Jalogi Mor at 7:30 AM. At about one kilometer distance from Jalogi towards Aut, there were two Dhabas belonging to Nitish and Thakur Dutt. Wind Power Station was at a distance of half a kilometer. Forest Nursery was situated at a distance of 10 meters from Jalogi. No one was present there in the morning. They checked 4-5 vehicles. He has taken the rukka to the Police Station at about 8:30 AM. 13. The accused was apprehended at Jalogi Mor at about 7:30 AM. He was apprised of his legal right to be searched either before a Magistrate or a Gazetted Officer. Consent memo to this effect is Ext. PW-1/A. The consent memo is strictly in conformity with Section 50 of the ND & PS Act. Dhaba of Nitish and Thakur Tea Stall were at a distance of one kilometer. There was Wind Power Station, however, since it was early morning, therefore, no witness was present at the spot. It is, in these circumstances, independent witnesses could not be associated during the proceedings. 14. The case property was sealed in accordance with law. It was produced before SI Anil Kumar, PW-7, who resealed it with ten seals of impression “N”. The case property was sent to FSL, Junga and the contraband was found to be charas. 15. The copy of site plan is Ext. PW-4/A. No habitation has been shown in the site plan. Dhabas were not mentioned in the site plan Ext.PW-4/A. There is no cross-examination of the I.O. on this aspect. Since it was an isolated and secluded place, no independent witnesses could be associated. The statements of the official witnesses inspire confidence. This Court has no occasion to interfere with the well reasoned judgment of the learned trial Court dated 29.10.2014. 16. Accordingly, there is no merit in this appeal and the same is dismissed.