Research › Search › Judgment

Himachal Pradesh High Court · body

2017 DIGILAW 1284 (HP)

Khekh Ram v. State of H. P.

2017-11-23

SURESHWAR THAKUR

body2017
JUDGMENT : Sureshwar Thakur, J. The instant appeal is directed against the judgment rendered on 1.8.2012/3.8.2012, by the learned Special Judge, Kullu, H.P., upon Sessions Trial No. 39 of 2011, whereby the appellant stands convicted AND is consequently sentenced to undergo rigorous imprisonment, for two years AND to pay a fine of Rs. 20,000/-, for commission of an offence punishable under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as ‘NDPS Act’) and in default of payment of fine, he is sentenced to suffer simple imprisonment for two months. 2. Brief facts of the case are that on 10.4.2011 vide daily diary report Ext. PW4/A entered in P.S. Kullu ASI Hira Singh PW-7, alongwith SI Ashok Kumar PW-6, HC Tek Singh, Const. Povinder Thakur PW4 and lady constable Prem Dassi PW5 proceeded towards left bank road, jia etc. for patrolling and detection of crime. When the police party, at 8:00 PM, reached near place known as Talogi the accused was noticed coming from upper side of the road with a bag on his shoulder who on sighting the police tried to flee away. The I.O. with the help of accompanying police officials nabbed him. The place of occurrence was isolated and IO associated constable Povinder PW-4 and HHC Tek Singh as witnesses. In the presence of witnesses, the IO took search of the bag carried by the accused upon which words “DIESEL INDUSTRY DENIM Division” were printed. In the bag Ext. P2, a polythene envelope containing stick shaped black substance was found, out of which two sticks were wraped with red coloured polythene paper and remaining with green polythene paper. The black substance on the basis of experience was found to be charas by the I.O.. The recovered charas was found to be 600 gms. Thereafter, the I.O, put the bag Ext. P2 along with charas Ext. P4 wrapped in polythene wrapper in cloth parcel Ext. P1 and sealed the same with seal ‘A” at ten places. The I.O filled NCB forms Ext. PW4/C and drew sample of seals ‘A’ on cloth pieces one of which is Ext. PW4/B. The seal after use was handed over to Const. Povinder. The case property was seized vide memo Ext. PW4/C. Ruqua Ext. P1 and sealed the same with seal ‘A” at ten places. The I.O filled NCB forms Ext. PW4/C and drew sample of seals ‘A’ on cloth pieces one of which is Ext. PW4/B. The seal after use was handed over to Const. Povinder. The case property was seized vide memo Ext. PW4/C. Ruqua Ext. PW5/A was prepared and sent to P.S. Kullu for registration of case through PW-5 LC Prem Dassi on the basis of which PW-8 Sher Singh registered FIR Ext. PW5/B, made endorsement Ext. PW5/C on the ruqua, prepared case file and handed over the same to the I.O.. Spot map Ext. PW6/A was prepared by the I.O. and statements of witnesses were recorded under Section 161 Cr. P.C. On reaching P.S. Kullu, the I.O. vide daily diary entry Ext. PW6/C produced the case property before PW-8 SI Sher Singh SHO for re-sealing. The SHO re-sealed parcel Ext. P-1 with five seals bearing impression “11/12”. On 11.4.2011, IO prepared special report Ext. PW3/A and submitted before Addl. S.P. who made endorsement Ext. PW3/C on the special report and handed over the same to PW-3 HC Harbans Kumar who entered the same in the relevant register, the abstract of which is Ext. PW3/B. PW-1 MHC Ram Kishan entered the case property at Serial No. 26 of Malkahana Register and on 12.4.2011, after filling column No. 12 of the NCB form, handed over the same alongwith NCB forms in triplicate. PW-2 Rajneesh Kumar after depositing the case property at FSL Junga handed over the RC containing receipt of FSL Ext. PW1/D with PW-1 MHC Ram Kishan. On receipt of FSL report Ext. PA, it was found that the contraband recovered from the accused was found to be the extract of cannabis and sample of charas and final report under Section 173 Cr. P.C. was prepared and presented in the Court with the prayer to take cognizance of the case to try the accused for the commission of the offence aforesaid. 3. Accused was charged for committing an offence punishable under Section 20 of the ND & PS Act. In proof of the prosecution case, the prosecution examined eight witnesses. On conclusion of recording of prosecution evidence, the statement of the accused under Section 313 Cr.P.C. was recorded by the trial Court, wherein he claimed false implication. However, he did not lead any evidence in his defence. 4. In proof of the prosecution case, the prosecution examined eight witnesses. On conclusion of recording of prosecution evidence, the statement of the accused under Section 313 Cr.P.C. was recorded by the trial Court, wherein he claimed false implication. However, he did not lead any evidence in his defence. 4. On an appraisal of evidence on record, the learned trial Court, recorded findings of conviction against the accused/appellant herein. 5. 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. 6. On the other hand, the learned Additional Advocate General has with compatible 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. 7. 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. 8. Recovery of charas weighing 600 grams stood effectuated from the purported conscious and exclusive possession of the accused “under memo” comprised in Ext.PW-4/C. In sequel to recovery of the aforesaid quantum of contraband, standing effectuated, from the purported conscious and exclusive possession of the accused, the Investigating Officer concerned, prepared NCB form, form whereof stands comprised in Ext. PW1/C (i) “wherein” revelations occur, of, his “embossing upon” the bulk parcels comprised in Ext. P-1 , ten seals of English Alphabet “A” (ii) also echoings occur in Ext. PW1/C, of, thereafter Ext. P-1 standing re-sealed by the SHO concerned, at the Police Station concerned, with five seals carrying designations, of, “11/12”. The aforesaid exhibit containing therein “the” bulk of charas, exhibit whereof stood seized under Ext.PW-4/C (iii) “from the” purported conscious and exclusive possession of the accused “stood” under a road certificate comprised, in Ext.PW-1/B, hence sent for analysis to the FSL concerned. The aforesaid exhibit containing therein “the” bulk of charas, exhibit whereof stood seized under Ext.PW-4/C (iii) “from the” purported conscious and exclusive possession of the accused “stood” under a road certificate comprised, in Ext.PW-1/B, hence sent for analysis to the FSL concerned. The FSL Junga purveyed its report thereon, report whereof is comprised in Ext.PA, wherein it recorded a firm opinion, of, the contents enclosed in the aforesaid bulk parcel “sent to it” for analysis, holding ingredients of charas. Apart therefrom, the prosecution for establishing the charge, to which the accused stood subjected to, relied upon the depositions of official witnesses. 9. The learned Additional Advocate General, has contended, that, with the FSL concerned receiving “in an untampered condition” the bulk parcel, comprised in Ext. P-1, recovery whereof stood effectuated, “through” memo comprised in Ext.PW4/C, “from the” purported and conscious and exclusive possession of the accused, (i) also with the FSL concerned in its report rendered in respect thereof, report whereof is comprised in Ext.PA “unveiling” the trite factum of “its” containing charas hence “ought to” constrain this Court, to affirm the findings of conviction recorded upon the accused. He contends that with the apposite NCB form comprised in Ext. PW1/C (ii) holding complete connectivity “with” the road certificate besides with the seizure memo also with the report of the FSL concerned comprised in Ext.PA (iii) importantly “in respect” of all the relevant descriptions vis-à-vis all seal impressions initially embossed thereon “at” the relevant site of occurrence by the Investigating Officer (iv) also in respect “of” descriptions of all the reembossed/resealed “seal” impressions thereon, “by” the SHO concerned, (v) “ultimately”, with the prosecution witnesses, to whom the case property stood shown in Court, thereat categorically “voicing” that the case property “holding absolute analogity” with respect, to, all the apt descriptions, in respect thereof, respectively, held in NCB form Ext. PW1/C road certificate Ext.PW- 1/B, the report of FSL comprised in Ext.PA”, (vi) thereupon the judgment of conviction returned upon accused warranting affirmation. The learned counsel appearing for the accused, has contended with much vigour that the relevant intra se connectivitys/congruities interse the seizure of bulk parcel “through” Ext. PW4/C, “from” the purported conscious and exclusive possession of accused, vis-à-vis all the aforesaid relevant descriptions occurring, in Ext.PA (vii) “not” standing efficaciously proven with respect to the case property “at the stage of its” production in Court. PW4/C, “from” the purported conscious and exclusive possession of accused, vis-à-vis all the aforesaid relevant descriptions occurring, in Ext.PA (vii) “not” standing efficaciously proven with respect to the case property “at the stage of its” production in Court. He espouses that the relevant interse lack of analogity in respect of descriptions of all seal impressions embossed thereon, at the stage when it stood seized, under memo Ext. PW4/C (viii) and also at the stage when it stood resealed, by the SHO concerned besides in respect of all the apposite seal impressions, displayed in the report of the FSL comprised in Ext.PA vis-à-vis at the ultimate stage, of its production, in Court, whereat it stood shown to the prosecution witnesses, (ix) “is aroused” by the factum of (a) the Public Prosecutor concerned “at” the stage of the prosecution witness(es) concerned, stood shown, “in Court” the relevant case property “his” not adducing before the trial Court, the relevant abstract of the Malkhana Register, with portrayals therein (x) that at the time of its standing retrieved from the Malkhana concerned, by its Incharge, the latter in contemporanity thereof, recording in the relevant register, apposite entries in respect thereof (xi) the Public Prosecutor concerned at the time of production of the case property in Court, for its hence being shown to the prosecution witnesses concerned “not” making any communication therebefore that “it” stood delivered to him by an authorized official. (xii) Conspicuously, at the time of production of case property in Court, whereat, it stood shown singularly to PW-4, rather observations occurring therein qua Court seals being embossed thereon, (xiii) whereas with no observations, being made, by the learned trial Court, with respect to its also holding seals bearing descriptions in consonance with the ones embodied in NCB forms, renders the “case property” at the imperative stage of its production in Court, to, hence get disconnected with the property recovered under recovery memo Ext. PW4/C. However, the aforesaid submission, does not obtain any strength. (xiv) “Significantly” when a close discernment of the depositions’ of the material prosecution witness “unveil”, that the learned defence counsel “during” the course of holding him to cross-examination, (xv) his thereat “omitting to” put apposite suggestion to him , in respect of the apposite bulk parcel borne in Ext.P-1, seizure whereof occurred, through, memo comprised, in Ext. (xiv) “Significantly” when a close discernment of the depositions’ of the material prosecution witness “unveil”, that the learned defence counsel “during” the course of holding him to cross-examination, (xv) his thereat “omitting to” put apposite suggestion to him , in respect of the apposite bulk parcel borne in Ext.P-1, seizure whereof occurred, through, memo comprised, in Ext. PW4/C “not” standing related, to the apposite subsequently therewith prepared NCB Form, comprised in Ext.PW-1/C, (xvi) vis-à-vis road certificate comprised in Ext.PW-1/B, AND vis-a-vis the report of FSL comprised in Ext.PA”(xvii) “intra se un-relatability whereof”, arising from their occurring apparent intra se incongruitys, with respect to all the apposite descriptions, of all seal impressions drawn thereon vis-à-vis the ones embossed on Ext.P-1 AND as displayed in NCB form borne in Ext. PW1/C. (xviii) Even though, the learned defence counsel “at” the stage, of production of Ext.P-1 in Court “had” an opportunity to decipher, from, the case property “occurrence of” any apparent misdescriptions AND want of any intra se congruities inter se, all the aforesaid exhibits vis-à-vis bulk parcel Ext.P-1 also when the learned defence counsel thereat, held the best opportune moment, to hence make/the relevant unearthings, with respect to lack of all intra se incongruities interse the aforesaid exhibits vis-à-vis Ext.P-1 (bulk parcel) (xix) “yet/his” failing to thereat put apposite suggestions to the prosecution witness “in respect of” any lack of intra se analogity erupting inter se the relevant echoings, made in bulk parcel borne in Ext.P-1, seizure whereof occurred “through” memo Ext.PW-4/C, AND respectively vis-à-vis NCB Form PW1/C, road certificate Ext.PW-1/B and the report of FSL comprised in Ext.PA” (xx) “significantly” with respect to all seal impressions embossed upon Ext. P-1 hence standing displayed or not displayed, in all the aforesaid memos. P-1 hence standing displayed or not displayed, in all the aforesaid memos. Consequently, his omitting to hence make any apposite unearthings, at the relevant stage, especially with respect to lack of any intra se interse analogity with respect to all relevant descriptions borne thereon, conspicuously with respect to all seal impressions borne thereon vis-à-vis all seal impressions borne on all memos prepared subsequently thereto, (xxi) hence begets an inference, of, the defence acquiescing, to recovery of charas occurring “through” Ext.PW-4/C, also its conceding, of, recovery of the relevant contraband, hence occurring from the conscious and exclusive possession of the accused, also thereupon an inference is galvanized, of, bulk parcel Ext.P-1 at the imperative stage of its production in Court, hence standing efficaciously proven, to stand recovered from the site of occurrence, from the conscious and exclusive possession of the accused. 10. Be that as it may, on the previous date of hearing this Court had pronounced, a direction upon the learned Additional Advocate General (i) “for” his ensuring production, today, before this Court “of” the relevant case property. The purpose for this Court, making, the aforesaid direction, was for facilitating this Court, (ii) to make decipherings therefrom, with respect to “it” holding the signatures of the witnesses, to, the apposite recovery memo, whereunder “it” stood recovered, from the conscious and exclusive possession of the accused. In compliance thereof, SI Ajit Singh and HC Param Chand No. 41 of Police Station, Kullu have today produced the case property, before this Court, (iii) in respect whereof memo comprised in Ext.PW-4/C, stood prepared. A close reading of the bulk parcel, of the relevant case property, makes a graphic display of its holding the signatures of the accused, PW4 Povinder Thakur, HHC Tek Singh, SHO Inspector Sher Singh and of the Investigating Officer concerned. A close reading of the bulk parcel, of the relevant case property, makes a graphic display of its holding the signatures of the accused, PW4 Povinder Thakur, HHC Tek Singh, SHO Inspector Sher Singh and of the Investigating Officer concerned. Consequently, when it bears the signatures, of all the aforesaid, (iv) thereupon it stands concluded, of it, even at the time of its production before the learned trial Court hence carrying the signatures of all the aforesaid, (v) “especially” when thereat the learned defence counsel, despite, holding the best opportune moment, for belying the occurrence thereon of the signatures of all the witnesses, to the relevant recovery memo, (vi) rather “omitted to” avail the aforesaid opportunity, wherefrom it is befitting, to conclude “especially” also when accused also did not in his statement recorded under Section 313 Cr.P.C. make any echoings therein, (vii) with respect to his signatures borne in Ext. PW4/C “not” belonging to him, “begets” an inference that, for want of the aforesaid endeavours, by the learned defence counsel “at” the stage of production, of Ext.P1 before the learned trial Court, qua hence thereupon the defence acquiescing, to the occurrence thereon, of the authentic signatures, of the accused as well as of occurrence thereon, of the authentic signatures “of” the aforesaid witnesses, to the relevant recovery memo, comprised in Ext. PW4/C, (viii) besides its acquiescing with respect to occurrence of intra se congruity inter se all seal impressions borne thereon vis-à-vis all seal impressions displayed in all the relevant exhibits, imperatively, when no proof with respect to Ext.P-1 standing tampered with stands adduced. Also the inevitable sequel therefrom, is (ix) that the defence also acquiescing, that the contents held therein, as displayed in the report of the FSL concerned, report whereof is comprised in Ext.PA, being charas. Furthermore, reiteratedly the descriptions of all the seal impressions occurring therein “hold” absolute intra se concurrence besides congruity with descriptions, of, all seal impressions, respectively displayed in recovery memo borne, in Ext.PW4/C, NCB form borne in Ext. Furthermore, reiteratedly the descriptions of all the seal impressions occurring therein “hold” absolute intra se concurrence besides congruity with descriptions, of, all seal impressions, respectively displayed in recovery memo borne, in Ext.PW4/C, NCB form borne in Ext. PW1/C, road certificate borne in Ext.PW-1/B AND ultimately with the ones borne in the report of FSL embodied in Ext.PA, (x) wherefrom it can be befittingly concluded “conspicuously” with the learned defence counsel “not” at the stage contemporaneous, to the production of the case property, making, any apposite endeavours, for belying the tenacity of occurrence, of, intra se congruity inter se the descriptions, of all seal impressions borne thereon vis-à-vis descriptions of all seal impressions displayed in all the aforesaid memos. In sequel the concomitant ensuing derivative, is, that the bulk parcel comprised in Ext.P-1, at the stage of its production in Court, standing unflinchingly connected, with the apposite recitals borne in Ext.PW-4/C, (xi) “significantly” in respect of its recovery standing effectuated, from, the conscious and exclusive possession of the accused AND the effect of the aforesaid inference, is that (xii) dehors the fact, of, that the public prosecutor concerned, at the time of its production in Court ‘his’ not adducing the relevant abstract, of the Malkhana Register “with” descriptions therein, of, at the stage of its production in Court “it” stood retrieved, from the apposite Malkhana, by its Incharge (xiii) nor evidence existing qua the Incharge of the Malkhana concerned, in contemporanity thereof making apposite recitals in the relevant register besides dehors the fact that before “its” being shown to the prosecution witnesses concerned, at the time of recording of his depositions, the public prosecutor concerned also omitting to make any communication to the learned trial Court that “it” stood delivered to him by an authorized official “obviously not” giving any momentum to any contention, (xiv) hence reared before this Court by the learned counsel for the accused, that thereupon the bulk parcel comprised in Ext.P-1, recovery whereof stood effectuated under memo Ext. PW4/C “at” the site of occurrence, from the conscious and exclusive possession of the accused “not” at the time of its production in Court, standing proven to be connected therewith (xv) given “its” not purportedly bearing any intra se consonance in respect of descriptions, of any seal impression embossed therein vis-à-vis the seal impressions borne in the aforesaid exhibits. PW4/C “at” the site of occurrence, from the conscious and exclusive possession of the accused “not” at the time of its production in Court, standing proven to be connected therewith (xv) given “its” not purportedly bearing any intra se consonance in respect of descriptions, of any seal impression embossed therein vis-à-vis the seal impressions borne in the aforesaid exhibits. Consequently, this Court is constrained to make a firm besides a formidable conclusion (xvi) that the prosecution, has discharged its duty of proving to the hilt, of, the relevant intra se connectivity’s, hence occurring inter se seizure memo whereunder bulk parcel of charas Ext.P-1, stood recovered, from the exclusive and conscious possession, of the accused vis-à-vis the production of Ext.P-1 in Court. In aftermath, the learned trial Court making observations of Ext. P1, at the time of its production in Court, holding Court seals, is insignificant, as it appears that the aforesaid observations were made to ensure that after its retrieval to the official concerned, it being kept in the proper storage. 11. The counsel for the accused appellant has also projected before this Court, that, the seal after use was handed over to PW Povinder Kumar, who however, omitted to place it on record. Omission on the part, of, PW- Povinder Kumar, to place the seal on record, has been canvassed, to deliver a vital blow to the prosecution case, hence rendering it suspect, in as much as, its manifesting the fact of the case property being tampered with. However, in a judgment reported in Hira Giri Alias Hardev Giri vs. State of H.P., 2003(2) Shim.L.C 350 (i) wherein it has been held that the factum of non production of seal would be rendered inconsequential nor its non production would give any leverage to any contention, that the entire seizure is vitiated, (ii) especially when, as in, this case the link evidence comprised in search and seizure memos, being efficaciously proven to be signatured by the police officials, as well as by the accused hence establishe the guilt of the accused. (iii) Besides with cogent evidence manifesting, of, documented dispatch’s, to all quarters concerned, of the seized contraband, bears seal impressions akin to the one embossed on the bulk parcel. (iii) Besides with cogent evidence manifesting, of, documented dispatch’s, to all quarters concerned, of the seized contraband, bears seal impressions akin to the one embossed on the bulk parcel. (iv) Moreover, with hereat there existing no cogent evidence, carrying denotations of tampering with case property, occurring at any stage, aborts any conclusion that absence of production of seal by the prosecution, hence dethroning the prosecution version. 12. The learned counsel for the accused/appellant has, with force and vigour contended, that omissions of the Investigating Officer concerned to join independent and impartisan witnesses, vis-à-vis the relevant proceedings, (i) for hence imbuing them with a hue of transparency and impartisanship, thereupon the apt proceedings being vitiated (ii) besides the findings of conviction AND sentences returned upon the accused also being amenable for interference. The contention regarding availability of independent and impartial witnesses, is, (iii) anchored upon the admission made by PW-5, in her cross-examination, qua there being frequent movement of vehicular traffic, on the left bank of the road, at the time of commencement of the proceedings relating to search, seizure and recovery of contraband. (iv) Consequently, it has been contended that when independent witnesses were available, to be joined, the apt omissions to join them, was deliberate as well as intentional, thereupon the relevant omissions making inroads vis-à-vis the veracity of the prosecution version. 13. The force and vigour of the above contention addressed before this Court by the learned counsel, for the accused-appellant, would command sway AND would carry immense persuasive value, only in the event of, it, being also firmly and cogently established through the accused examining, all, the drivers and conductors of the vehicles plying on the relevant route and theirs hence rendering depositions, unraveling absolute synchronization interse the time of their arrival at the site of occurrence, with the commencement of proceedings relating to search and seizure. However, the aforesaid evidence is amiss, given none of the drivers and conductors of the vehicles plying on the route, where the site of occurrence, is located, remaining unexamined. Hence, in the absence of their examination on behalf of the accused/defence, the inevitable ensuing conclusion is (i) of the purported independent witnesses, being not immediately available, to be joined by the Investigating Officer, at the time of his conducting the apposite proceedings, at the site of occurrence. Hence, in the absence of their examination on behalf of the accused/defence, the inevitable ensuing conclusion is (i) of the purported independent witnesses, being not immediately available, to be joined by the Investigating Officer, at the time of his conducting the apposite proceedings, at the site of occurrence. Obviously, thereupon it is also to be concluded that, omissions on the part of the Investigating Officer, to join any of the persons/passengers occupying the traffic plying upon the route whereat the proceedings commenced being not deliberate, (ii) given theirs being not immediately available to be joined. Hence, theirs being not joined renders the prosecution version to be neither flawed nor unbelievable. 14. The contention on the part of the learned counsel appearing for the accused-appellant, that despite availability of frequent vehicular traffic, in, the vicinity of the site of occurrence and concomitant omissions on the part of the Investigating Officer, to join any of the independent witnesses hence constituting, transgression of the mandate of law, envisaging a duty being cast upon the Investigating Officer, to join independent and impartial witnesses also attains no firm legal foothold, in as much as, Jauni Ram versus State of H.P., 2005(1) SLJ 186 enshrines, the principle of non-joining of independent witnesses being not fatal to the prosecution case, especially when the nabbing, of the accused, is at an open place, and thereupon the non-association of purported independent witnesses being neither deliberate nor unintentional. As a sequitor when a close and studied analysis of the testimonies of the official witnesses, does not, disclose of their rearing animosity towards the accused, whereupon hence they deliberately omitted to associate independent witnesses or hence were partisan. As a corollary when evidence on record, does not, project any rearing of any inimicality of the I.O. towards the accused, besides when the proceedings commenced at a secluded and at an open place, which remained, at the relevant time, unvisited by any person either on foot or while traveling in a vehicle, thereupon the consistent versions qua the occurrence, deposed, by the police witnesses, does not acquire, any taint nor is uninspiring besides is not slanted. 15. 15. For the reasons which have been recorded hereinabove, 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 trial Court does not suffer from any gross perversity or absurdity of mis-appreciation and non appreciation of evidence on record. 16. Consequently, there is no merit in the instant appeal which is accordingly dismissed. The Judgment impugned before this Court is maintained and affirmed. Records be sent back forthwith.