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Himachal Pradesh High Court · body

2017 DIGILAW 1041 (HP)

Shiv Ram v. State Of H. P.

2017-09-08

SURESHWAR THAKUR

body2017
JUDGMENT Sureshwar Thakur, J. (Oral) - The instant Appeal stands directed by the Accused/convict against the judgment rendered by the learned Special Judge-II, Chamba, District Chamba, H.P. in Sessions Trial NDPS/555/2014, whereby, he returned findings of conviction against the Accused/convict in respect of charges framed under Section 20 of the Narcotic Drugs and Psychotropic Substances Act. The learned trial Court proceeded to hence sentence him to undergo rigorous imprisonment for four years and to pay a fine of Rs. 50,000/- and indefault of payment of fine, to undergo further simple imprisonment for a period of one year. 2. The facts relevant to decide the instant case are that on 2.11.2014, HC Virender Singh (PW-13) along with C. Yog Raj (PW-1) C. Sanjay Kumar No. 327 along with drug detection kit IO bag, Camera, meta light and private vehicle bearing registration No. HP 73-4214 were proceeded towards Banikhet, Tunuhatti and Katoribangla around 1:30 PM from SIU, Chamba. The aforesaid police officials reached at place Katoribangla around 3 PM. They laid the nakka at Katoribangla from 3 PM to 6 PM and checked 35-40 vehicles. Around 6 PM they proceeded from Katoribangla towards Banikhet. They reached near to place Belly at about 6:40 P.M. They checked 15-20 vehicles at Belly from 6:40 PM to 7:30 PM. Around 7:30 PM the Accused came from the side of Banikhet having a bag on you left shoulder. On seeing the police party Accused tried to run away from the spot, on whicha suspicion was raised and the Accused was nabbed alongwith bag by HC Virender Singh (PW-13) with the help of the police party present at the spot. On inquiry the Accused disclosed his name Shiv Ram son of Sh. Bhagat Ram, resident of village Kandeua, Tehsil Churah, Distt. Chamba, HP aged about 52 years. The Accused was carrying a black coloured bag on which ''Parco'' was written. Thereafter the bag of the Accused was checked by opening the first zip of the bag on which one note book alongwith some papers was found. On opening the second zip one transparent polythene bag was found in which some black coloured hard substance was seen on opening the polythene bag black coloured hard substance in the shape of sticks and bundle of the sticks was found. The black coloured hard substance was checked with the help of drug detection kit which was found to be charas/cannabis. The black coloured hard substance was checked with the help of drug detection kit which was found to be charas/cannabis. To that effect the identification memo Ext. PW1/A was prepared. Thereafter the recovered cannabis/charas was weighed with the electronic scale. On weighment it was found to be 950 grams. Thereafter the recovered cannabis/charas was put in the same polythene bag and the polythene bag was put inside the bad along with other contents of the bag. The bag was sealed in a white piece of cloth with five seal impression of seal ''N'' Columns No. 1 to 8 of the NCB forms in triplicate Ext. PW12/C were filled by HC Virender Singh (PW-13). The seal ''N'' was embossed on the NCB forms in triplicate. Sample seal Ext. PW1/B was drawn on a separate piece of cloth. The seal after use was handed over to C. Yog Raj (PW-1). The recovered cannabis/charas NCB forms and sample seal were taken into possession vide recovery and seizure memo Ext. PW1/C. The copy of Ext. PW1/C was given to the Accused free of costs. Thereafter HC Virender Singh (PW-13) prepared the rukka Ext.PW13/A and sent the same to the Police Station, Dalhousie through C. Sanjay Kumar No. 327 (PW-2) for lodging the FIR. The copy of ruqua Ext. PW5/A was sent to S.P. Chamba for his information through C. Sanjay No. 145 (PW-3) HC Virender Singh prepared the spot map Ext. PW13/B as per the factual position. He recorded the statements of the witnesses. The Accused was interrogated and after interrogation he was arrested vide arrest memo Ext. PW1/D and the information of the arrest was given to his wife. After arrest, Jamatalashi of the Accused was conducted vide memo Ext. PW1/E. Accused was medically examined at CHC Dalhousie. The case file was received by HC Virender Singh (PW-13) through C. Sanjay Kumar No. 327 (PW-2). Thereafter, FIR No. was written on the relevant documents prepared at the spot. Case property was handed over to SHO,P.S. Dalhousie for resealing along with case file and Accused. The Jamatalashi articles were handed over to MHC P.S. Dalhousie. Thereafter, the case property was released with five seal impressions of ''A''. The sample seal was drawn on the back side of Ext. PW1/B which is Ext. PW4/A. Inspector Bhupinder Singh (PW-12) embossed the seal impression ''A'' on the NCB forms in triplicate. The Jamatalashi articles were handed over to MHC P.S. Dalhousie. Thereafter, the case property was released with five seal impressions of ''A''. The sample seal was drawn on the back side of Ext. PW1/B which is Ext. PW4/A. Inspector Bhupinder Singh (PW-12) embossed the seal impression ''A'' on the NCB forms in triplicate. He filled the relevant columns of NCB forms in triplicate Ext. PW12/C. The seal after use was handed over to C. Suneel Kumar (PW-4). Thereafter reseal memo was prepared on which Inspector Bhupinder Singh and C. Sunil Kumar appended their signatures. After releasing the case property it was handed over to MHC, P.S. Dalhousie. On 2.11.2014 around 11:55 PM HC Virender Singh (PW-13) got recorded rapat No. 34 Ext. PW6/A pertaining to arrival of the police party at police station, Dalhousie. On 3.11.2014 SI Bhupinder Singh also got recorded the rapat No. 2 Ext. PW6/B pertaining to the resealing and handing over the case property to MHC in the present case. He also filled column No. 12 of the NCB forms in triplicate Mark-A. The extract of the Mallkhana register is Ext. PW9/B. On 4.11.2014 he sent the case property to FSL Junga vide RC No. 97/14. On 5.11.2014 S.P. Chamba Dr. D.K. Chaudhary handed over special report PW Ext. PW5/B to HC Devanand PW-5. He entered the special report in the receipt register at serial No. 15127/VD, dated 5.11.2014. On 25.11.2014, HC Deepak Kumar received the case property along with result from SFSL, Junga through C. Rajinder Kumar PW-10. He made an entry to that effect in Malkhana Register Ext. PW9/B. The Chemical Examiner on analysis of the Charas/cannabis opined per report Ext. PX that the substance examined was extract of cannabis and sample of charas and quantity of resin found therein was 21.3% w/w. After the completion of the investigation and the receipt of the result of the FSL Ext. PX, Inspector Bhupinder Singh prepared the challan and the same was presented in the Court. 3. On conclusion of investigations, into the offences, allegedly committed by the Accused, a report under Section 173 of the Code of Criminal Procedure was prepared and filed in the Court concerned. 4. The Accused was charged by the learned trial Court for his committing an offence punishable under Section 20 of the NDPS Act. In proof of the charge, the prosecution examined 13 witnesses. 4. The Accused was charged by the learned trial Court for his committing an offence punishable under Section 20 of the NDPS Act. In proof of the charge, the prosecution examined 13 witnesses. On conclusion of recording of prosecution evidence, the statement of the Accused under Section 313 of the Code of Criminal Procedure was recorded by the trial Court, wherein the Accused claimed innocence and pleaded false implication in the case. 5. On an appraisal of evidence on record, the learned trial Court, recorded findings of conviction against the Accused/appellant herein. 6. The Accused/appellant is aggrieved by the judgment of conviction recorded by the learned trial Court. The learned Counsel appearing for the Accused/appellant has concertedly and vigorously contended qua the findings of conviction recorded by the learned trial Court standing not based on a proper appreciation by it of the evidence on record, rather, theirs standing sequelled by gross mis-appreciation by it of the material on record. Hence, he contends qua the findings of conviction being reversed by this Court in the exercise of its appellate jurisdiction and theirs being replaced by findings of acquittal. 7. On the other hand, the learned Additional Advocate General has with considerable force and vigour, contended that the findings of conviction recorded by the Court below standing based on a mature and balanced appreciation of evidence on record and theirs not necessitating interference, rather theirs meriting vindication. 8. This Court with the able assistance of the learned counsel on either side, has, with studied care and incision, evaluated the entire evidence on record. 9. Under memo(s) borne in Exts.PW1/A and in Ext. PW1/C, recovery of contraband weighing 950 grams, stood effectuated from a black coloured bag bearing Ext. P2. The aforesaid Exhibit(s) bear the signature(s) of witnesses thereto and of the Accused/convict. Also, subsequent to the aforesaid apposite recovery(s) being effectuated under Ext. PW1/A and Ext. PW1/C, thereafter upon a personal search of the Accused/convict, recovery(s) of items delineated in Ext. PW1/E stood hence effectuated. 10. Since all the relevant recoveries stood effected from a bag slung on the shoulder of the Accused, thereupon with the aforesaid mode of recovery, not, being on a personal search of the Accused/convict, in sequel, thereupon was no imperative enjoined necessity cast upon the Investigating Officer concerned, to, adhere to the statutory mandate borne in Section 50 of the ND & PS Act. 11. 11. Subsequent to the preparation of the aforesaid exhibits, the Investigating Officer concerned proceeded to, in consonance with all the apposite recitals borne in Ext. PW1/A and in Ext. PW1/C, hence emboss upon the relevant sealed cloth parcels, 5 seal impressions bearing English alphabet ''N'', display(s) whereof also occur in the relevant NCB form borne in Ext. PW12/C. Upon the item(s) of contraband carried in the relevant cloth parcels, hence standing transmitted to the Police Station concerned, thereat the SHO concerned, as unraveled by PW12/C, embossed upon the relevant cloth parcel(s), 5 re-seal seal impression(s) of English alphabet ''A''. The MHC concerned under Road Certificate borne in Ext. PW9/C transmitted Ext. P-1 to the FSL concerned. The FSL on receiving the relevant cloth parcel for examination, proceeded to under Ext.PX, hence record an affirmative opinion of its contents being Charas. 12. All the prosecution witnesses, who, are official witnesses deposed with interse besides intrase concurrence in respect of the relevant recoveries being effected from a black coloured bag bearing Ext.P2, bag whereof, was at the relevant time, slung on the shoulder of the Accused/convict, hence was in his conscious and exclusive possession. All the prosecution witnesses were subjected, to, a thorough, besides inexorable crossexamination by the learned defence counsel, however, during course thereof, no, elicitations emanated from each of them, for constraining any conclusion of each either contradicting or embellishing upon their previously recorded statement(s) in writing or theirs proceeding to make gross intrase contradiction(s) or theirs with rife interse contradiction rendering unreliable their version(s) qua the prosecution case. Consequently, it is deemed fit to impute sanctity to their respective testification(s). 13. Be that as it may, the relevant cloth parcel bearing Ext. P-1, wherewithin Charas is held, was, during the course of recording of examinations-in-chief, of PWs concerned, after seals affixed thereon being ordered to be broken, hence shown to each of them. However, as unveiled on a reading of the respective testification(s) of the PWs concerned, that upon, Ext. P-1 standing thereat shown to them, it therein being visibly recorded of Ext. P-1 holding interse concurrence(s) with Ext. PW1/A and with Ext. However, as unveiled on a reading of the respective testification(s) of the PWs concerned, that upon, Ext. P-1 standing thereat shown to them, it therein being visibly recorded of Ext. P-1 holding interse concurrence(s) with Ext. PW1/A and with Ext. PW1/C, in, respect of occurrence of embossing(s) thereon, of 5 seal impressions of English Alphabet ''N'' and Ext.P-1 also holding interse concurrence vis-a-vis occurrence thereon, of, re-embossed thereon, reseal seal impression(s) of English alphabet ''A'' besides all seals appended thereon being evidently intact also theirs being evidently unspoiled. Importantly, though at the stage of production of Ext. P1 in Court, it, stood scribed as Ext. P-1, given its also holding consonance with apposite recitals borne in NCB form besides vis-a-vis Ext.PW12/C, yet the learned defence counsel permitted ''its'' exhibition in Court, without, his thereat visibly attempting to make any decipherments, in respect of any interse incongruity, interse ''it'' vis-a-vis Ext. PW1/A and Ext. PW1/C besides with NCB form(s) borne in Ext.PW12/C and with the report of FSL borne in Ext. PX. Omission of aforesaid endeavour(s) by the learned defence counsel, begets inference (s) of (a) his conceding that Exhibit P-1 being validly exhibited, (b) it being relevant and an admissible piece of incriminatory evidence against the Accused,(c) at the stage of production of Ext. P1 in Court, its, holding connectivity with its recovery effectuated under Exhibits PW1/A and under Ext. PW1/C, (d) its holding connectivity with the report of the FSL borne in Ext. PX. 14. Furthermore, the sample seal taken, on piece(s) of cloth, bearing Ext. P-1, holds the signatures of the Accused, as also of witnesses thereto, even Exhibits PW1/A and PW1/C respectively hold the signatures of the Accused, as well as of all the witnesses thereto, besides sample seal cloth parcel Ext. P-1 holds the signatures of the Accused and of the witnesses thereto. With occurrence of all aforesaid signatures thereon, especially when the learned defence counsel, has not, made any attempt for ripping apart authenticity(s) thereof also his failing to make attempts in respect of the signatures, of the Accused being obtained under compulsion or under duress, also, boosts an inference of his conceding vis-a-vis the truth of all the recitals occurring therein. Conspicuously, therefrom, it is to be concluded of his omitting to, make endeavour(s) in respect of the relevant item(s) of contraband respectively recovered under Ext. PW1/A and under Ext. Conspicuously, therefrom, it is to be concluded of his omitting to, make endeavour(s) in respect of the relevant item(s) of contraband respectively recovered under Ext. PW1/A and under Ext. PW1/C being unrelated to bag Ext.P-2. Omission of aforesaid endeavour(s) also negates the submission of the learned counsel for the appellant that the relevant recoveries are bereft of any sanctity, theirs being sequelled by sheer contrivance deployed by the Investigating Officer concerned, for thereupon falsely implicating the Accused. 15. Importantly also, the MHC concerned had recorded his deposition before the Court, an incisive reading whereof, omits to, make any unfoldments of the learned defence counsel thereat, putting any apt suggestions to him whereupon he concerted to belie the authenticity(s) of Ext. PW1/A and of Ext.PW1/C, besides he omitted to put apposite suggestion(s) in respect of the contents borne in the relevant cloth parcel(s), whereon, an affirmative opinion was pronounced by the FSL, being not, connected with recovery(s) thereof effected under Ext. PW1/A and under Ext. PW1/C, rather the apposite recoveries being relatable or connected with recovery(s) thereof standing effectuated from the conscious and exclusive possession of some other person. The omissions aforesaid also, do not, purvey any leverage to the learned counsel for the Accused, to, contend before this Court, that, for absence of production of the relevant abstract of the apposite Mallkhana Register, by its Incharge, with, revelations therein that upon his at all apposite stages of transmitting Ext. P1, to the learned trial Court, for, its, thereat being shown to, the prosecution witnesses concerned, by the APP concerned, his thereat in compatibility (s) thereof making corresponding apposite entries in the relevant register, tritely in respect of retrieving it, from the Mallkhana besides upon Ext. P-1 standing retransmitted to him, his thereat making compatible corresponding entries in the apposite register, thereupon rendering the charge to capsize ''significantly'' when at the relevant stage of production, of, Ext. P-1 in Court, all, seal impression(s) borne therein, were, found intact, besides when for all the aforesaid reasons, the effect of non production thereof in Court, is inconsequential. 16. The learned counsel for the Accused has contended with vigour, that with occurrence of discrepancies interse the items recovered under Ext. P-1 in Court, all, seal impression(s) borne therein, were, found intact, besides when for all the aforesaid reasons, the effect of non production thereof in Court, is inconsequential. 16. The learned counsel for the Accused has contended with vigour, that with occurrence of discrepancies interse the items recovered under Ext. PW1/E, a memo of jamatalashi, upon a personal search of the Accused/convict being carried by the Investigating Officer concerned vis-a-vis the items borne in Ext.PX, significantly in respect of two condoms, medicines and a pension card, hence the sealed cloth parcel borne in Ext. P-1, wherein Charas is held, is perse unconnected vis-a-vis its recovery(s) effected under Ext.PW1/A and under Ext. PW1/C. The aforesaid argument would succeed in case the predominant incriminatory item(s), not, visibly occurring in Ext. PW1/A and Ext. PW1/C, whereas, its, standing displayed in Ex. PX, contrarily with the significant inculpatory item(s) displayed in Ext. PW1/A and in Ext. PW1/C also occurring in Ext. PX, thereupon the mere fact of some items, not, being reflected in Ext. PW1/E yet coming to be enclosed in Ext.PX, wherein contents of Charas are held, does not, belie the prosecution version in respect, of, the predominant recovery(s) being effected under Ext. PW1/A and under Ext. PW1/C, whereafter ''it'' stood enclosed in sealed cloth parcels. Importantly also when at the time of production of Ext.P-1, in Court, whereby it stood shown to each of the prosecution witnesses, the learned defence counsel, omitted to, put any apposite suggestion(s), to, the prosecution witnesses qua lack of interse inter-relatability in respect of the items occurring in Ext P-1, vis-a-vis those reflected in Ext. PW1/A and in Ext. PW1/C, hence arising from their(s), not, finding their occurrence in the bag, wherefrom, each(s) of the item(s) stood, retrieved for their being enclosed in the relevant signatured cloth parcel (s). Consequently, omission(s) of aforesaid effort(s) also fillips an inference that the relevant signatured cloth parcel, bearing Ext.P-1, also holding therein all the items held in the black coloured bag slung on the shoulder of the Accused, wherefrom the dominant inculpatory recovery(s) stood effected, even though, some of the items borne therein remaining un-recited in Ext. PW1/A and in Ext. PW1/C, ''whereas'' they found reflections in Ext.PX. Nor even any frail endeavour, was, made by the learned defence counsel, to hence override besides disconnect the recitals borne in Ext.PX vis-a-vis recitals borne in Ext. PW1/A and in Ext. PW1/A and in Ext. PW1/C, ''whereas'' they found reflections in Ext.PX. Nor even any frail endeavour, was, made by the learned defence counsel, to hence override besides disconnect the recitals borne in Ext.PX vis-a-vis recitals borne in Ext. PW1/A and in Ext. PW1/C. Concomitantly also for disconnecting the apposite recitals occurring in Ext.PX, vis-a-vis the production of case property in Court, no best apposite endeavour(s) comprised in his putting suggestion(s) to the prosecution witnesses concerned, with echoings therein of all the items recovered upon a personal search of the Accused, besides upon search of bag Ext. P-2, all thereof(s) being, not, held in the black bag/Ext. P-2, thereupon theirs, not, finding explicit reflections in the relevant memos. In aftermath, evident absence of the aforesaid best suggestion(s), cannot, give any strength to the aforesaid submission addressed before this Court, rather the mere apt minimal interse discrepancy(s) vis-a-vis Ext.PWl/A and vis-a-vis Ext. PW1/C and vis-a-vis Ext. PX besides Ext. PW1/E, in respect of all the items reflected therein, yet theirs finding occurrence in Ext. PX, is, not critical rather is construable to arise from, though all the items reflected in Ext.PX also finding occurrence in the black coloured bag, Ext.P-2, theirs yet by sheer inadvertence, at the time of preparation of Ext.PW1/E, hence standing unincorporated in the latter exhibit(s). Conspicuously, when, no best apposite suggestion(s) in respect of the Accused, not, owning them rather theirs being owned by some other person, also were omitted to be put, by the learned defence counsel upon his holding each of the prosecution witness, to cross-examination, thereupon, it is to be concluded of the Accused acquiescing to his owing them. 17. When the aforesaid inference, is, entwined with the learned defence counsel also failing to put suggestion(s) to the Investigating Officer, that, the recoveries were not effected from the bag, besides when the Accused also failing subsequent thereto, while answering the questions put to him during the court proceedings conducted under Section 313 Cr. P.C., hence attribute any inculpatory role to a person other than him, also constrains this Court, to, conclude that the aforesaid minimal discrepancies, may, have arisen by sheer inadvertence, also engender an inference of the bag also containing all item(s) disclosed in Ext. PX and that the mere omission of their reflection in the relevant exhibits, whereas their standing reflected in Ext. PX, not, hence undermining the strength of the prosecution case. PX and that the mere omission of their reflection in the relevant exhibits, whereas their standing reflected in Ext. PX, not, hence undermining the strength of the prosecution case. 18. The lack of association of independent witnesses despite their evident availability also does not sap the vigour of the prosecution case, ''unless'' firm evidence erupted in respect of the association of independent eye witnesses in the relevant proceedings being a dire necessity, necessity(s) whereof would spur, only, upon the Accused canvassing that recovery(s) of relevant item(s), were not effectuated from his person rather from some other person and also his making endeavours that the apposite recovery(s), were sequel of a contrivance besides an invention, deployed by the Investigating Officer, yet when the aforesaid endeavour(s) is not made, thereupon there was, no, necessity cast upon the Investigating Officer, for his joining or associating independent witnesses in the relevant investigation(s), even despite their evident availability in proximity, to the site of occurrence. 19. For the reasons which have been recorded here in above, this Court holds that the learned trial Court has appraised the entire evidence on record in a wholesome and harmonious manner apart therefrom the analysis of the material on record by the learned appellate Court, does not, suffer from any perversity or absurdity of mis-appreciation and non-appreciation of evidence on record. 20. Consequently, there is no merit in the instant Appeal which is accordingly dismissed. The Judgment impugned before this Court is maintained and affirmed. It be forthwith implemented. Records be sent back forthwith.