Research › Search › Judgment

Himachal Pradesh High Court · body

2017 DIGILAW 1405 (HP)

AMAR CHAND v. STATE OF HIMACHAL PRADESH

2017-12-16

CHANDER BHUSAN BAROWALIA, TARLOK SINGH CHAUHAN

body2017
JUDGMENT : Tarlok Singh Chauhan, J. The appellant stands convicted by the learned Special Judge, Kullu, District Kullu, H.P. on 20.10.2016 under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short NDPS Act) in Sessions Trial No. 27 of 2015 and has filed the instant appeal. 2. The prosecution story, in brief, is that on 3.2.2015, as per Rapat, Ex. PW-5/A, a police team headed by HC Sunil Kumar (PW-5), left the Police Station, Bhunter, for routine patrolling and 'Nakabandi' towards Jachhni on Bhunter-Manikaran road in an official vehicle No. HP-34A-9984, being driven by HHG Khub Ram. At about 8.20 P.M. when the police party was present at Jachhni, they saw the appellant coming on foot from Chharor nullah side carrying one rucksack (Pithu Bag) on his back. On seeing the police party, the appellant turned back and threw the bag in the bushes and tried to flee from the spot. This act on the part of the appellant raised suspicion, therefore nabsent LHC Manoj Negi to bring independent bed at a distance of about 15 meters. The place being a secluded one, the Investigating Officer (PW-5) witnesses, but no such witnesses could be found and then the I.O. associated PW-3 LHC Manoj Negi and Hitesh Kumar (PW-4) as witnesses and in their presence, the I.O. inquired about the name and address of the appellant and upon disclosure of the same further inquired as to why he had thrown the bag, but the appellant could not give any satisfactory reply. Then, in the presence of the witnesses, the 'Pithu Bag' was checked and was found to be containing six polythene packets, containing black colour substance, which appeared to be Charas. The recovered substance was weighed and found to be 1.645 kilograms. Thereafter, the entire charas was put in the 'Pithu Bag' and sealed in a cloth parcel with nine seals of 'B'. After completing the procedural formalities, challan was filed in the Court of learned Special Judge, who upon consideration, charged the accused/appellant for commission of offence punishable under Section 20 of the NDPS Act. 3. The prosecution in support of its case examined nine witnesses. The statement of the accused under Section 313 Cr.P.C., 1973 was recorded, wherein he denied the case of the prosecution and stated that he was innocent and that a false case had been planted against him. 4. 3. The prosecution in support of its case examined nine witnesses. The statement of the accused under Section 313 Cr.P.C., 1973 was recorded, wherein he denied the case of the prosecution and stated that he was innocent and that a false case had been planted against him. 4. As observed earlier, the learned Court below after recording the statements of the witnesses and evaluating the same, convicted the appellant, constraining him to file the instant appeal. 5. It is vehemently argued by Mr. Anoop Chitkara, learned counsel for the appellant that the findings recorded by the learned Court below are perverse inasmuch as it has failed to appreciate the evidence in right perspective and has further not taken into consideration the legal position. Whereas, the learned Assistant Advocate General, would counter this argument by stating that a huge quantity of charas has been found from the appellant, therefore, no leniency in the matter can be shown particularly when the judgment rendered by the learned Court below is based on correct appreciation of the evidence as also the facts. We have heard learned counsel for the parties and have gone through the records of the case. 6. As per the prosecution case, on 03.02.2015, as per Rapat, Ex.PW-5/A, a police team, headed by HC Sunil Kumar (PW-5), left Police Station, Bhunter, for routine patrolling and 'Nakabandi' towards Jachhni on Bhunter-Manikaran road in official vehicle No. HP.34A-9984. At about 8.20 PM. The said police party was present at Jachhni, where accused was seen coming on foot from Chharor-nullah side carrying one rucksack (Pithu bag) on his back. The accused, on seeing the police party, turned back and threw the bag in the bushes and tried to run away from the spot, but he was immediately apprehended at the spot. Search of the bag was done and during search, 1 KG 645 grams of Charas was recovered from him. In order to prove the proceedings taken at the spot, prosecution examined three witnesses namely LHC Manoj Negi (PW-3), HC Hitesh Kumar (PW-4) and HC Sunil Kumar (PW-5), who is the Investigating Officer in this case. 7. Search of the bag was done and during search, 1 KG 645 grams of Charas was recovered from him. In order to prove the proceedings taken at the spot, prosecution examined three witnesses namely LHC Manoj Negi (PW-3), HC Hitesh Kumar (PW-4) and HC Sunil Kumar (PW-5), who is the Investigating Officer in this case. 7. To similar effect is the statement of PW-3 LHC Manoj Negi, who in addition to what has been stated by PW-5, stated that he had been sent by PW-5 to call for independent witnesses and he went towards Chharornullah, on foot, and came after 20 minutes as he was not able to find any person. Thereafter, he alongwith HC Hitesh Kumar (PW-4) was associated as witnesses. Pithu bag was lifted by HC Sunil and it was opened. On checking, it was found to be containing one carry bag of red colour in which six polythene packs were found. On checking the same, black colour substance was found which on the basis of experience and smell, was found to be cannabis. The recovered substance was weighed on electronic scale and found to be 1 kg 645 grams. Thereafter, the case property was sealed and NCB I Form, in triplicate, was filled. Sample seal Ex.PW-3/A was taken separately and recovery memo Ex.PW-3/B was prepared. 8. To similar effect is the statement of PW-4 HC Hitesh Kumar, who also happens to be the spot witness. Adverting once again to the statement of PW-5, it would be noticed that he has narrated the case of the prosecution in detail in his examination-in-chief, which is duly supported by the statements of PW-3 and PW-4. He has specifically stated that after the recovery of carry bag it was then put in the same Pithu Bag, which was then sealed in a cloth parcel with nine seals of 'B'. Sample of seal 'B' Ex.PW-3/A was drawn separately and the seal after use was handed over to HC Hitesh Kumar. He filled NCB I form, in triplicate, one of which is Ex.PW-5/B. The case property was then taken into possession vide memo Ex.PW-3/D, which was signed by the accused as well as the aforesaid witnesses. Sample of seal 'B' Ex.PW-3/A was drawn separately and the seal after use was handed over to HC Hitesh Kumar. He filled NCB I form, in triplicate, one of which is Ex.PW-5/B. The case property was then taken into possession vide memo Ex.PW-3/D, which was signed by the accused as well as the aforesaid witnesses. Thereafter, the Investigating Officer prepared rukka Ex.PW-5/C and sent it to Police Station, Bhunter, District Kullu through PW-3 LHC Manoj Negi, for the registration of the case and it was thereafter that FIR Ex.PW-8/A was registered by S.I. Bhag Singh (PW-8). After registration of FIR, an endorsement Ex. PW-8/B was made on the rukka and handed over the case file to LHC Manoj Negi (PW-3), who thereafter took it to the spot. Thereafter, the I.O. prepared the site plan Ex.PW-5/D and recorded the statements of witnesses correctly as per versions given by them. The accused was thereafter arrested vide memo Ex.PW-4/A. 9. Gian Chand (PW-9) is the MHC, with whom the parcel of case property was deposited after it was sealed with nine seals of "B". He stated that the parcel bearing nine seals of "B" and three seals of "G" along with parcel, NCB I form, copy of FIR and samples of seals were deposited with him. He sent the case property to FSL, Junga on 5.2.2015 vide RC No. 21/2015 through HHC Neel Chand (PW-6). PW-6, in turn, has stated that the case property was sealed with nine seals of "B" and three seals of "G". He deposited the case property with FSL, Junga and during the time when the same remained in his custody and possession, it was not tampered with. It is not in dispute that the case property on analysis was found to be charas. 10. Shri Anoop Chitkara, learned counsel for the appellant has vehemently argued that the appellant has been falsely implicated, that too, on the basis of the sole testimony of the official witnesses, who otherwise were interested and even despite availability of witnesses, the police officials did not associate the said witnesses and, therefore, the entire trial stands vitiated. 10. Shri Anoop Chitkara, learned counsel for the appellant has vehemently argued that the appellant has been falsely implicated, that too, on the basis of the sole testimony of the official witnesses, who otherwise were interested and even despite availability of witnesses, the police officials did not associate the said witnesses and, therefore, the entire trial stands vitiated. He would further vehemently urge that the story of the prosecution is liable to be discarded as it has failed to produce on record the seals that were alleged to have been affixed on the contraband i.e. alleged to have been recovered and taken from the possession of the appellant. 11. As regards the non-association of the independent witnesses and conviction being based entirely on the testimony of the official witnesses, we may notice that it has specifically come in the case of the prosecution that the spot was secluded one and that the police officials did try and make an endeavour to associate the independent witnesses and it was only on account of non-availability of such witnesses that they could not be associated. 12. As regards the contention that the conviction could not have been based on the testimony of the official witnesses, we find no merit in this contention for the simple reason that the credibility of the witnesses has to be tested on the touchstone of truthfulness. Therefore, wherever evidence of police officials after careful scrutiny inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction even in absence of the independent witnesses not supporting the case of the prosecution. No infirmity attaches to the testimony of the police officials, merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence, such reliable and trustworthy statement can form the basis of conviction. (Refer: Aher Raja Khima v. State of Saurashtra AIR 1956 SC 217 , Tahir v. State (Delhi) (1996) 3 SCC 338 , Girja Prasad (dead by LRs) v. State of Madhya Pradesh (2007) 7 SCC 625 , Tika Ram v. State of Madhya Pradesh (2007) 15 SCC 760, Govinda Raju alias Govinda v. State by Sriramapuram Police Station and another (2012) 4 SCC 722 ). 13. 13. There is nothing on record to suggest, that too, even remotely doubt the testimony of the police officials whose statements otherwise cannot be rejected solely on the ground that the witnesses happens to be the police officials and were the members of the raiding party. (Refer: Sama Alana Abdulla v. State of Gujarat (1996) 1 SCC 427). 14. Even otherwise, mere non-association of the independent witnesses in the given facts and circumstances of the case cannot be held to be fatal to the prosecution case. After all, the prosecution cannot be asked to perform the impossible once there was no independent witnesses available at the relevant time, then obviously the I.O. had no other option but to associate the police officials accompanying him as witnesses. 15. Notably, the appellant has not led any evidence which may even remotely suggest much less prove that the police officials were having any enmity or animosity with him. Furthermore, the appellant did not even file any complaint against the members of the police party, before any authority, Court etc. relating to his alleged false implication. 16. As regards the contention of non-production of the sample seals, it is more than settled that the same is not fatal to the prosecution case, more particularly, to the facts of the present case where the police officials have fully established their case of having sealed the case property both at the spot and police station. 17. A Co-ordinate Bench judgment of this Court in Sohan Lal v. State of H.P., 2016 (6) ILR(HP) 274, while dealing with the question of non-production of original seal in the Court, observed as under : "52. Non-Production of original seal in the Court also cannot be said to be fatal, for the police officials have fully established their case of having sealed the case property, both on the spot and at the Police Station. There is no discrepancy about the number and nature of the seals. Also, there is no iota of evidence that they were either broken or tampered with. Report of the FSL (Ex.PW-13/C) is also evidently clear to such effect. 53. On this issue much reliance is placed on a decision rendered us in Kurban Khan and Anil Kumar, wherein it is held that non-production of original seals does render the prosecution case to be fatal. Report of the FSL (Ex.PW-13/C) is also evidently clear to such effect. 53. On this issue much reliance is placed on a decision rendered us in Kurban Khan and Anil Kumar, wherein it is held that non-production of original seals does render the prosecution case to be fatal. As authors of the said decisions, we ourselves clarify them to have been rendered in the given facts and circumstances, which fact, also subsequently stands clarified by another Coordinate Bench of this Court, by relying upon a judgment rendered by the apex Court in State represented by Inspector of Police, Chennai v. N.S. Gnaneswaran, (2013) 3 SCC 594 , in Kishori Lal (Criminal Appeal No. 201 of 2016), that the said decisions were rendered in the given facts and circumstances. Not only that, they further clarified that it was incumbent upon the accused to have established prejudice caused to him on account of non-production of the original seal in the Court, particularly when otherwise there was sufficient evidence, linking the seal affixed on the sample and embossed on the documents to be the same and the case property to be the one so recovered from the conscious possession of the accused. The Court observed that "availability of other sufficient evidence renders non-production of originals seal as a technical defect, which does not vitiate trial unless prejudice is caused ..". "Purpose of production of original seal in the Court is to compare it with seal affixed on parcels of contraband and sample in the Court so as to prove that the parcels produced in the Court are the same which were prepared and sealed on the spot at the time of recovery from the accused and also to ensure that parcel sent for chemical examination and received back were the same which were seized and sealed on the spot." 18. The findings recorded by the learned trial court are based on correct appreciation of the facts and the law and do not warrant any interference. There are no compelling circumstances which may call for interference as the reasons given by the learned court below are cogent and convincing and based on correct appreciation of law and records of the case. 19. In view of the aforesaid discussion, we find no merit in this appeal and the same is accordingly dismissed.