Research › Search › Judgment

Himachal Pradesh High Court · body

2017 DIGILAW 1361 (HP)

Prem Chand v. State of H. P.

2017-12-11

SURESHWAR THAKUR

body2017
JUDGMENT : Sureshwar Thakur, J. The instant appeal is directed against the judgment rendered on 17.5.2017, by the learned Special Judge, Kullu, District Kullu, H.P., upon, Sessions Trial No.18 of 2011/13/30 of 2017, whereby the appellant stands convicted AND is consequently sentenced to undergo rigorous imprisonment, for five years AND to pay a fine of Rs. 50,000 /-, 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 one year. 2. Brief facts of the case are that on 28.1.2011, as per Rapat, Ext. PW6/C, ASI Daya Ram (PW-6) alongwith HHC Lal Singh (PW-5) ASI Ram Swarup (PW-1) and ASI Rajeev Kumar, had gone for patrolling towards Van Bihar, Manali and were present there. At about 5:30 PM, the accused was found coming from Manali bus stand side, who on noticing the police party, threw a bag, which he was carrying and he tried to run away. He was apprehended by the Police, I.O. inquired the reasons of throwing the bag, but no reasonable explanation was given by the accused. The place was secluded, therefore, HHC Lal Singh (PW-5) was deputed to bring local witnesses, who came after some time and reported that he asked 8-10 persons to become independent witnesses, but they were not ready. Thereafter, I.O. associated PW-5 and ASI Rajeev Kumar as witnesses. The bag thrown by the accused was lifted from the spot and checked. On checking of the bag, Ext. P-2, Charas Ext. P-4 was found wrapped in polythene, Ext. P-3. The recovered charas was weighed and found to be 700 gms. It was repacked in the same manner and sealed in cloth parcel with four seals of letter “A”. Sample seal Ext. PW5/B was drawn separately. IO filled NCB form, Ext. PW3/B on the spot. Thereafter, the parcel of case property was taken into possession vide seizure memo Ext. PW5/A. Thereafter, I.O. prepared rukka Ext. PW5/C and handed over the same to HHC Lal Singh (PW-5) with a direction to carry the same to P.S. Manali for the registration of the case and on receipt of the same, ASI Dharam Pal registered FIR Ext. Thereafter, the parcel of case property was taken into possession vide seizure memo Ext. PW5/A. Thereafter, I.O. prepared rukka Ext. PW5/C and handed over the same to HHC Lal Singh (PW-5) with a direction to carry the same to P.S. Manali for the registration of the case and on receipt of the same, ASI Dharam Pal registered FIR Ext. PW6/A by putting his endorsement on the rukka and handed over the case fie to HHC Lal Singh with a direction to hand over the same to I.O. at the spot. IO prepared the spot map, Ext. PW6/B and also recorded the statements of witnesses under Section 161 Cr.P.C. as per their version. The accused apprised about the grounds of arrest vide memo, Ext. PW5/E and thereafter, arrested vide memo, Ext. PW5/D, and information qua his arrest, was given to the person, desired by him. On completion of the proceedings at the spot, accused along with case property, was brought to Police Station, Manali, and produced before SI/SHO Om Chand(PW-3), who resealed the parcel, Ext. P-1 with four seals of “H”. He also filled relevant columns of NCB 1 form, Ext. PW3/B and put for facsimile of seal “H” thereon. He also drew samples of seal “H” Ext. PW3/A, and deposited the case property, i.e. parcel, Ext. P-1 containing 700 gms of charas, along with sample seals “A” and “H” form NCB1, in triplicate, and other documents with MHC of police station, who entered the same in Register No. 19 of the Malkhana at sr. No. 548, the abstract of which is Ext. PW4/A and deposited the same in Malkhana. The case property remained in his safe custody. MHC Sher Singh after filling column No. 12 of NCB form sent parcel, Ext. P-1 along with NCB forms, samples seal A and H as well as other relevant documents to FSL Junga. On 29.1.2011, Investigating Officer prepared special report, Ext. PW2/B, and submitted the same before the then Dy.S.P. Manali, who after making his endorsement on the special report, handed over the same to his Reader, HHC Sher Singh, who entered the same in the relevant register, the abstract of which is Ext. PW2/A. The report of FSL Ext. PW1/A was received and as per analysis, the contents of exhibit were opined extract of cannabis and sample of charas and final report under Section 173 Cr. PW2/A. The report of FSL Ext. PW1/A was received and as per analysis, the contents of exhibit were opined 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. 2. The 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 seven 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 made disclosures qua his false implication. However, he did not lead any defence evidence. 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 vigor, contended that the findings of conviction recorded by the learned 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 700 grams, stood effectuated, from the purported conscious and exclusive possession of the accused “under memo” comprised in Ext.PW-5/A. In sequel to recovery(s) 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. PW3/B (i) “wherein” revelations occur, of, his “embossing upon” the bulk parcel(s) comprised in Ext. PW3/B (i) “wherein” revelations occur, of, his “embossing upon” the bulk parcel(s) comprised in Ext. P-1 , four seals of English Alphabet “A” (ii) also echoings occur in Ext. PW3/B, of, thereafter Ext. P-1 standing re-sealed, by the SHO concerned, at the Police Station concerned, with four seals, carrying English Alphabet “H”. The aforesaid exhibit containing therein “the” bulk of charas, exhibit whereof stood seized under Ext.PW 5/A (iii) “from the” purported conscious and exclusive possession, of, the accused “stood” under a road certificate comprised, in Ext.PW-4/B, hence sent for analysis to the FSL concerned. The FSL Junga purveyed its report thereon, report whereof is comprised in Ext.PW1/A, 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.PW5/A, “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. PW1/A “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. PW3/B (ii) holding complete connectivity “with” the road certificate besides with the seizure memo, comprised in Ext. PW5/A AND also with the report of the FSL concerned, comprised in Ext. PW1/A (iii) importantly “in respect” of all the relevant descriptions vis-à-vis all seal impression(s) initially embossed thereon “at” the relevant site of occurrence, by the Investigating Officer (iv) also in respect “of” description(s) of all the re-embossed/resealed “seal” impression(s) thereon, “by” the SHO concerned, (v) “ultimately”, with the prosecution witness(es), 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 description(s), in respect thereof, respectively, held in NCB form Ext. PW3/B, road certificate Ext.PW-4/B, AND with the report of FSL, comprised in Ext.PW1/A”, (vi) thereupon the judgment of conviction returned upon the accused warranting affirmation. PW3/B, road certificate Ext.PW-4/B, AND with the report of FSL, comprised in Ext.PW1/A”, (vi) thereupon the judgment of conviction returned upon the accused warranting affirmation. The learned counsel appearing for the accused, has contended with much vigor, that the relevant intra se connectivity(s)/congruity(s) interse the seizure of bulk parcel “through” Ext. PW5/A, “from” the purported conscious and exclusive possession of accused, vis-a-vis all the aforesaid relevant descriptions occurring, in Ext.PW1/A (vii) “not” standing efficaciously proven vis-a-vis the case property “at the stage of its” production in Court. He espouses that the relevant interse lack of analogity in respect of description(s), of all seal impression(s) embossed thereon, at the stage when it stood seized, under memo Ext. PW5/A (viii) and also at the stage when it stood resealed, by the SHO concerned besides in respect of all the apposite seal impression(s), displayed in the report of the FSL, comprised in Ext.PW1/A vis-à-vis 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, standing shown, “in Court” the relevant case property “his” not adducing before the trial Court, the relevant abstract, of, the Malkhana Register, with portrayal(s) 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 “their not” making any communication therebefore that “it” stood delivered to him, by an authorized official. (xii) However, the aforesaid submission, does not obtain any strength. (xiii) “Significantly” when a close discernment, of, the depositions’, of, the material prosecution witness “unveil”, that the learned defence counsel “during” the course of holding them to cross-examination, (xiv) his thereat “omitting to” put apposite suggestion to them, in respect of the apposite bulk parcel borne in Ext.P-1, seizure whereof occurred, through, memo comprised, in Ext. (xiii) “Significantly” when a close discernment, of, the depositions’, of, the material prosecution witness “unveil”, that the learned defence counsel “during” the course of holding them to cross-examination, (xiv) his thereat “omitting to” put apposite suggestion to them, in respect of the apposite bulk parcel borne in Ext.P-1, seizure whereof occurred, through, memo comprised, in Ext. PW5/A “not” standing related, to the apposite subsequently therewith prepared NCB Form, comprised in Ext.PW-3/B, (xv) AND vis-à-vis road certificate comprised in Ext.PW-4/B, AND vis-a-vis the report, of the FSL comprised in Ext.PW1/A”(xvi) “intra se unrelatability whereof”, arising from their occurring apparent intra se incongruity(s), with respect to all the apposite description(s), of all seal impression(s) drawn thereon vis-à-vis the ones embossed, on, Ext.P-1 AND vis-à-vis the display(s) borne in NCB form embodied in Ext. PW3/B. (xvii) 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 mis-descriptions AND want of any intra se congruity(s) 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) (xviii) “yet/his” failing to thereat put apposite suggestion(s) 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-5/A, AND respectively vis-à-vis NCB Form PW3/B, road certificate Ext.PW-4/B AND the report of the FSL comprised in Ext. PW1/A” (xix) “significantly” with respect to all seal impression(s) embossed upon Ext. P-1 hence standing displayed or not displayed, in all the aforesaid memos. PW1/A” (xix) “significantly” with respect to all seal impression(s) embossed upon Ext. P-1 hence standing displayed or not displayed, in all the aforesaid memos. Consequently, his omitting to hence make any apposite unearthings, from PWs’, at the relevant stage, especially with respect to lack of any intra se interse analogity(s) with respect to all relevant description(s) borne thereon, (xx) conspicuously with respect to all seal impression(s) borne thereon vis-àvis all seal impression(s) borne, on all memos, prepared subsequently thereto, (xxi) hence begets an inference, of, the defence acquiescing, to recovery of charas occurring “through” Ext.PW5/A, 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. At this stage, the learned counsel appearing, for the appellant/convict, submits (i) that with PW-5 and PW-6 in their respective deposition(s), borne in their respective cross-examination(s), hence making vivid disclosure(s) qua availability of a thickly inhabited locality in proximity, to, the site of occurrence, (ii) besides theirs, making communication(s) therein, of, despite the Investigating Officer concerned, making efforts, for associating independent witnesses in the relevant proceedings, (iii) yet with their also deposing with unanimity, qua all persons’, who, were concerted to be associated, by the Investigating Officer, in the relevant proceedings, rather refusing to record their participation(s), as independent witness(es) thereto, (iv) whereas, the police witnesses’ not, making apt disclosure(s), with respect to the name(s) of these independent witnesses, whose association in the relevant proceedings, was, abortively strived by the Investigating Officer concerned, hence begetting an inference (a) of the Investigating Officer concerned, not making any efforts, for, associating independent witness(s) in the relevant proceedings; (b) his omission(s) being hence both deliberate and intentional, for only smothering the truth of the prosecution case. 11. The force of the aforesaid submission, is rendered blunted, by (a) their evidently being no apposite suggestion(s), purveyed by the learned defence counsel vis-à-vis the police witnesses, while his holding them, to cross-examination qua (b) of the Investigating Officer concerned, rearing any animosity or inimicality vis-à-vis the accused. 11. The force of the aforesaid submission, is rendered blunted, by (a) their evidently being no apposite suggestion(s), purveyed by the learned defence counsel vis-à-vis the police witnesses, while his holding them, to cross-examination qua (b) of the Investigating Officer concerned, rearing any animosity or inimicality vis-à-vis the accused. Absence of purveying of the aforesaid suggestion(s) vis-à-vis the police witnesses’, by the learned defence counsel, while subjecting them, to cross-examination, (c) contrarily begets an inference, of, the mere non-association, in the relevant proceedings, by the Investigating Officer, of independent witnesses, though, evidently available in proximity, to, the site of occurrence, rather not emanating, from, the Investigating Officer concerned, hence concerting to smother the truth of the prosecution case, nor his omissions are construable to be either deliberate or intentional. The non-association of independent witness(es), despite, their evident availability, in proximity to the site of occurrence, would assume significance, (d) upon the defence efficaciously establishing, existences, of, deep pervasive snags, in all the link evidence(s), embodied in the NCB form, prepared at the site of occurrence, upto the FSL, concerned, purveying an affirmative opinion upon the apposite seizure, qua contents thereof being Charas, (e) besides the defence bringing forth cogent evidence, of theirs being apparent lack of connectivity, interse, the case property, at the stage of its production in Court, vis-à-vis, the one, which stood recovered, under, seizure memo borne in Ext. PW5/A, However, with all the evident apt linkages appertaining vis-à-vis the recovery(s), of, the case property, under memo Ext. PW5/A, from the conscious and exclusive possession of the accused, upto an affirmative opinion being recorded thereon by the FSL, (f) besides thereafter upon, its production, in Court, hence being cogently proven, to, occur in an untampered unbroken chain AND bearing absolute concurrence(s), with recovery(s) thereof, effectuated under memo Ext. PW5/A, (g) also with all apt linkages, in respect, of, all the evident concurrence(s) vis-à-vis all the seal impression(s) borne, on, the relevant forms prepared at the site of occurrence, vis-à-vis the ones borne on the case property, upon, its production in Court, (h) thereupon, given evident omission(s) of the aforesaid snags, in the prosecution case, did not, at all render the prosecution case, to falter merely for the Investigating Officer concerned, failing to associate independent witnesses’, in the relevant proceedings. 12. 12. 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. The impugned verdict is affirmed and maintained. 13. However, the learned counsel for the appellant/convict prays, at this stage, to reduce the sentence of imprisonment imposed upon the petitioner/convict. He submits that the aforesaid submission may be amenable to acceptance, given the convict, being the sole bread earner of his family, comprising of six family members. The aforesaid submission is accepted. The sentence of imprisonment imposed upon the appellant/convict is reduced, from, five years’ rigorous imprisonment, to, three years’ rigorous imprisonment. Sentence of fine, imposed upon the appellant/convict is, however, not disturbed. The period of detention already undergone by him, is ordered to be set off, from the sentence of imprisonment imposed upon him. 14. Consequently, the sentence(s) of imprisonment imposed upon the convict, is modified to the extent above. Records be sent back forthwith.