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2017 DIGILAW 1073 (HP)

Ashish Kumar v. State of Himachal Pradesh

2017-09-16

SANJAY KAROL

body2017
JUDGMENT : Sanjay Karol, J. 1. In relation to FIR No.215/07, dated 22.8.2007, registered at Police Station, Nalagarh, District Solan, Himachal Pradesh, accused-convict Ashish Kumar (hereinafter referred to as the accused), was charged for having committed an offence, punishable under the provisions of Section 20(b)(i)B) of the Narcotic Substances and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act). Findings of conviction and sentence rendered by the Sessions Judge, Solan, Himachal Pradesh, in Case No.1-NL/7 of 2008, titled as State of Himachal Pradesh v. Ashish Kumar, are subject matter of challenge in the present appeal. 2. In short, it is the case of prosecution that on 22.8.2007, SI Raj Kumar (PW-11) received secret information that a person, with a lean body, wearing particular type of clothes, was suspected to be carrying some psychotropic substance. He sent ‘reasons to believe’ to the Superior Officer (Deputy Superintendent of Police, Nalagarh) and after forming a search party, comprising also of independent witnesses Niksan Kumar (PW-1) and Dheeraj Sharma (DW-1) searched for the said person, who was present at Dattowal, near Dargah Pir Baba (Nalagarh). Appearance of the accused matched the description, as such, he was informed of his statutory rights. He consented to be searched on the spot and from the bag carried by him, on his left shoulder, contraband substance, i.e. Charas, was recovered. It was weighed and found to be 900 grams. Two samples, each weighing 50 grams, were drawn. Both the samples and the bulk stuff were packed and sealed with a seal of impression ‘B’. On the spot, SI Raj Kumar filled up requisite particulars in the NCRB form. Ruka (Ex.PW-3/A), prepared on the spot was carried to the Police Station by Narinder Kumar (PW-3), on the basis of which FIR No.215 dated 22.8.2007 (Ex.PW-8/A) was registered by Yusuf Ali (PW-8). Since SI Raj Kumar (PW-11) himself was the SHO, there was no requirement of resealing the case property. With the completion of proceedings on the spot, accused was arrested and brought to the Police Station, where case property was entrusted to Vishesh Kumar (PW-9), who deposited it in the Malkhana. Thereafter, Raman Kumar (PW-4) took the sealed samples for chemical analysis to the Forensic Science Laboratory, Junga and report (Ex.PX) thereof collected. Special Report (Ex.PW-5/A) was prepared and sent to Superior Officer, which was received by Prem Lal (PW-7). Thereafter, Raman Kumar (PW-4) took the sealed samples for chemical analysis to the Forensic Science Laboratory, Junga and report (Ex.PX) thereof collected. Special Report (Ex.PW-5/A) was prepared and sent to Superior Officer, which was received by Prem Lal (PW-7). With the completion of investigation challan was filed in the Court. 3. 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. He pleaded false implication and innocence. In defence, he examined Dheeraj Sharma (DW-1), who was not examined by the prosecution for the reason that its case already stood corroborated by an independent witness Niksan Kumar (PW-1). 4. Finding the testimonies of the witnesses, so examined by the prosecution, to be inspiring in confidence, trial Court convicted the accused and sentenced him to undergo rigorous imprisonment for a period of two years and pay fine of Rs. 25,000/- and in default of payment thereof, further undergo rigorous imprisonment for a period of six months. 5. Having heard learned counsel for the parties as also perused the record, this Court finds the view taken by the trial Court to be correct and borne out from the record. 6. At this juncture, it be only observed that independent witnesses have also supported the prosecution case. In fact, witness to recovery, so examined by the accused, has also corroborated the prosecution version. 7. From the testimony of SI Raj Kumar, it is clear that on 22.8.2007, he received an information that a boy, aged about 20 years, having thin body with whitish complexion, wearing orange coloured shirt and carrying a blue coloured bag on his left shoulder, is seen strolling in Nalagarh Bazaar and selling psychotropic substance. The information was reduced into writing and sent to the Deputy Superintendent of Police, Nalagarh, through Constable Krishan Lal (PW-6), who corroborates such version of having carried the ‘reasons to believe’ and handed it over to the Reader in the Office of the Deputy Superintendent of Police. There is also documentary proof. Thus, the version to this extent stands established on record. There is no discrepancy in the testimony of the witnesses on this count. 8. There is also documentary proof. Thus, the version to this extent stands established on record. There is no discrepancy in the testimony of the witnesses on this count. 8. SI Raj Kumar further states that upon receipt of information, he formed a team, comprising of Police officials Kamal Nain, Narinder Kumar (PW-3) and Raj Pal, and proceeded towards Dattowal in a Government vehicle. When they reached near Pir Baba Shrine, they associated two independent witnesses, i.e. Niksan Kumar (PW-1) and Dheeraj Sharma (DW-1), who were present on the spot. Soon the party noticed the accused coming from opposite side. On query, accused disclosed his name as Ashish Kumar, resident of a village in District Hamirpur. This witness informed the accused that police suspected him of carrying some psychotropic substance. Accordingly, he was informed of his right of being searched by a Magistrate or a Gazetted Officer (Memo Ex. PW-1/A). He opted to be searched by the witness on the spot. When searched, from the bag carried by the accused on his left shoulder, two Khaki packets tied with adhesive tapes were found. On checking, the stuff contained in the packets smelt like Charas. Accordingly, Memo (Ex.PW-1/B) was prepared. Recovered stuff was weighed with the weighing scales carried in the IO Kit. To record the proceedings of weighing the stuff, a photographer was called, who took photographs (Ex.P-1 to P-4). Two samples, each weighing 50 grams, were drawn. Samples and the recovered stuff were packed separately in cloth parcels and sealed with seal bearing impression ‘B’. NCRB form was filled up on the spot and impression of the seal embossed thereupon. The recovered stuff was taken into possession vide Memo (Ex. PW-1/D). Prior thereto, various documents pertaining to search and seizure were also prepared. The independent witnesses also signed these documents. Thereafter, Ruka (Ex.PW-3/A) was taken by Constable Narinder Kumar to the Police Station, where FIR (Ex.PW-8/A) was registered. With completion of all formalities, accused was arrested and case property entrusted to Vishesh Kumar (PW-9), who deposited it in the Malkhana. 9. When cross-examination part of testimony of this witness (PW-11) is perused, Court does not find the version to be incorrect or his testimony, in any manner, to be shattered. It cannot be said that the witness has deposed falsely. 10. 9. When cross-examination part of testimony of this witness (PW-11) is perused, Court does not find the version to be incorrect or his testimony, in any manner, to be shattered. It cannot be said that the witness has deposed falsely. 10. What the Court also finds is the testimony of SI Raj Kumar to have been corroborated by Narinder Kumar (PW-3), another police official. 11. Not only that even independent witness Niksan Kumar (PW-1) has corroborated the version to the fullest. This witness is categorical that the he was associated by the police in carrying out search and seizure operations, which were carried out in his presence and the contraband substance recovered from the conscious and exclusive possession of the accused. He is signatory to documents of search and seizure (Ex.PW-1/A, 1/B, 1/C & 1/D). 12. Though defence witness Dheeraj Sharma (DW- 1) tried to save the accused, but then, in the cross-examination part of his testimony, even he admits (a) his presence on the spot, (b) police having associated him in carrying out search and seizure operations, (c) his signatures on the recovery memo, and (d) presence of the accused on the spot. And above all, in his unrebutted testimony, he states that “ Police asked the accused that they want to check the bag which he is carrying. Then police checked the bag which accused was carrying. It is correct when the bag was checked two packets containing charas were found in it which were weighed”. 13. Not only that from the conjoint reading of testimonies of Vishesh Kumar (PW-9) and Raman Kumar (PW-4), it is apparent that till and so long the contraband substance remained in their possession, it was not tampered with. Seals were not broken. From the report of the Forensic Science Laboratory (Ex.PX), it is apparent that the contraband substance recovered from the spot and analyzed by the experts is Charas. 14. In this view of the matter, accused was obligated in law to rebut the statutory presumption, in view of Section 35 of the Act, which in the instant case, Court finds not to have been so done. 15. Not only that, Court finds the Police Officer to have taken adequate precaution of informing the Superior Officer of recovery of the contraband substance, information whereof was sent in accordance with law. 15. Not only that, Court finds the Police Officer to have taken adequate precaution of informing the Superior Officer of recovery of the contraband substance, information whereof was sent in accordance with law. Thus, it cannot be said that there is infraction of provisions of Section 42 or 50 of the Act. 16. Mr. Dalip K. Sharma, learned Legal Aid Counsel, submits that the NCRB form appears to have been prepared later on, for the reason that dispatch number and FIR number appear to have been written in the same handwriting. The Court is not inclined to accept such a submission, for the reason that number of the FIR is not written in the same flow of hand. 17. Further, learned counsel points out contradictions in the testimonies of the witnesses, with regard to exact place of search and seizure operation. According to Niksan Kumar (PW-1), recovery took place near Dargah, whereas according to Narinder Kumar (PW-3) and SI Raj Kumar, it was near the office of the Forest Range Officer. Well, what is important is that Nalagarh is a small town and it is not that the Dargah and the office of Forest Range Officer are at a distant place. They are in the same place. Hence, contradiction cannot be said to be material, more so in view of testimony of the defence witness. 18. It is next pointed out that computer generated certificates (Ex.PW-9/D, 9/E, 9/F & 9/G) do not bear any number or date of certification. Well, even this would not make any difference. These certificates pertain to the entries made in the DD Register, with regard to secret information; registration of the FIR, and other documents prepared in the Police Station. Certificates pertain to the documents prepared by Vishesh Kumar in the Police Station, who has stepped into the witness box and testified about correctness of the certificates. The certificates are in fact signed by him. Simply because they are undated and do not bear any number, would not make any difference, more so when accused has not been able to highlight any prejudice caused to him, purely on this count. 19. It is also argued that seal ‘B’, with which the recovered stuff was sealed has not been produced in Court. Well, it has come in the testimony of Niksan Kumar that he lost the same. 19. It is also argued that seal ‘B’, with which the recovered stuff was sealed has not been produced in Court. Well, it has come in the testimony of Niksan Kumar that he lost the same. No doubt, no report in relation thereto was lodged, but even this fact would not make any difference. What is the purpose of producing the seal in the Court? It is only to ensure that the case property remains intact, which fact already stands established through the testimony of respective witnesses. 20. It is also argued that personal search of the accused was not conducted and also police officials did not offer themselves to be searched by the accused. Even this would not make any difference, for the reason that information which the police had was that the accused was carrying the contraband substance in the bag and when the bag was searched it was found to be correct. It is not the case of accused that the police present there had planted the contraband substance on him. 21. 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 chain of events stand conclusively established and lead only to one conclusion, i.e. guilt of the accused. 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. 22. 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. Evidence led by the prosecution is clear, cogent, convincing and reliable. Hence, the appeal is dismissed. 23. Assistance rendered by Mr. Dalip K. Sharma, learned Legal Aid Counsel, is highly appreciable. 24. Bail bonds furnished by the accused stand cancelled. Evidence led by the prosecution is clear, cogent, convincing and reliable. Hence, the appeal is dismissed. 23. Assistance rendered by Mr. Dalip K. Sharma, learned Legal Aid Counsel, is highly appreciable. 24. Bail bonds furnished by the accused stand cancelled. A copy of this judgment be sent to the trial Court for taking follow-up action. Records of the Court below be immediately sent back. Appeal stands disposed of, so also pending applications, if any.