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Himachal Pradesh High Court · body

2017 DIGILAW 1428 (HP)

Sandeep Kumar v. State of H. P.

2017-12-21

SURESHWAR THAKUR

body2017
JUDGMENT : Sureshwar Thakur, J. The instant appeal is directed against the judgment rendered on 20.5.2017, by the learned Special Judge, Kullu, District Kullu, H.P., upon, Sessions Trial No. 34 of 2011 (70 of 2016), whereby the appellant stands convicted AND is consequently sentenced to undergo rigorous imprisonment, for four years AND to pay a fine of Rs. 40,000/-, 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 13.6.2011, HC Chaman Lal along with HC Chet Ram Inspector Chandra Thakur, C. Sanjeet Kumar, ASI Kamal Kant, HC Om Prakash and C.Krishan Dev had proceeded from Police Station, Bhunter, in connection with patrolling and traffic checking in Govt. Vehicle No.HP-07- 0321 and HP 34-A 9984 towards Hathithan and thereafter they went towards Siun. At about 3:30 PM, a private bus bearing registration No.HP-66-4655 was noticed coming from Manikaran side, which was stopped for checking. PW-7 Kamal Kant, HHC Chet Ram and Lady Inspector Chandra entered the bus from front door and started checking. The accused was found sitting on seat No. 3 of the bus. Accused was having a bag Ext. P-2 in his lap. On checking the same, black colour substance was found in it, which was found wrapped in polythene packet. On opening the same, black colour substance in rectangular shape was found, which on the basis of experience was found to be charas. The bus driver PW-5 was associated as witness. Accused was got alighted from the bus and proceedings were conducted by sitting on the parapet. The recovered charas was weighed and found to be 520 gms. Thereafter the recovered charas was repacked with seal in a cloth parcel. The parcel was sealed with seal “H”. Sample seal of “H” Ext. PW5/A was drawn separately. NCB form in triplicate were filled, one of which is Ext. PW1/D. Seal after use, was handed over to Kamal Kant. The case property was, thereafter taken into possession vide seizure memo Ext. PW5/B which was signed by the witnesses and the accused. Proceedings on the spot were photographed and photographs are Ext. PW7/A-1 to PW7/A-3. PW5/A was drawn separately. NCB form in triplicate were filled, one of which is Ext. PW1/D. Seal after use, was handed over to Kamal Kant. The case property was, thereafter taken into possession vide seizure memo Ext. PW5/B which was signed by the witnesses and the accused. Proceedings on the spot were photographed and photographs are Ext. PW7/A-1 to PW7/A-3. The IO prepared the ruqua, which was sent to P.S. Bhunter, through HHC Chet Ram for the registration of the case, on the basis of which FIR Ext. PW1/B was registered by PW-1 who after the registration of the FIR, made endorsement, on the ruqua and handed over the case file to HHC Chet Ram to be taken to the spot. Thereafter, the I.O. prepared site plan Ext. PW7/B and recorded the statements of witnesses correctly as per versions given by them. The accused was apprised about the grounds of his arrest vide memo Ext. PW7/B and information qua his arrest was given to his wife. Accused was arrested vide memo Ext. PW5/C. 3. 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. 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. The learned counsel for the petitioner/convict submits, with great vigor (i) that with both PWs 6 and 7 making disclosure(s) in their respectively rendered testifications, of CID personnel, being also available alongwith the police officials of Police Station, Bhunter, at the time contemporaneous, vis-à-vis the relevant search being held, of bag bearing Ext. P-1. (ii) AND with the prosecution being unable to assign any valid reason(s), for the availability of the CID personnel, alongwith the police officials, at the time contemporaneous vis-à-vis the holding, of, search of bag Ext. P-1, (iii) thereupon an implied inference is reared, of, the police personnel of police Station, Bhunter, holding prior information, with respect to the accused, while, traveling in bus bearing No. HP-66-4655, theirs therein carrying the relevant item of contraband, besides consciously and exclusively possessing it AND which stood ultimately recovered, therefrom, under the relevant memo. He also contends, that thereupon with the Investigating Officer concerned being statutorily enjoined, by, the mandate of Section 42 of the NDPS Act, to, reduce the purported prior information into writing, whereas his evidently not reducing the purported prior information into writing, begets infraction of the aforesaid mandatory statutory provisions, provisions whereof stand extracted hereinafter: “Section 42 in The Narcotic Drugs and Psychotropic Substances Act, 1985. 1[42. 1[42. Power of entry, search, seizure and arrest without warrant or authorisation.- (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intellegence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,- (a) enter into and search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act: Provided that if such officer has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.” With a consequential sequel, of, hence visiting the prosecution case with a pervasive vitiating stench, hence rendering it to be not amenable, vis-à-vis, imputation of credence(s) thereto. 9. However, the aforesaid argument would acquire significance, upon, the learned defence counsel, upon holding the aforesaid prosecution witness(es), to cross-examination(s) his evidently meteting suggestion(s) to them, with echoings therein (i) of the police witnesses of Police Station, Bhunter, holding prior information, in respect of the accused, while traveling in bus No. HP-66- 4655, theirs carrying therein the relevant item of contraband, besides consciously and exclusively possessing it (ii) however the learned defence counsel, did not evidently mete the aforesaid suggestion(s) to any of the prosecution witnesses, while his holding them to cross-examination, (iii) thereupon it is to be concluded, of, the aforesaid submission addressed before this Court by the learned counsel appearing for the accused remains unrested upon firm apposite therewith evidentiary strata, hence renders it to hold no vigor. The learned counsel for the appellant/convict, has also drawn the attention, of, this Court, to the cross-examination of PW-5 (iv), wherein, he makes echoings of his signatures, upon Ext. PW5/A and Ext. PW5/B, being obtained in the Police Station, Bhunter, (v) wherefrom he contends qua the recovery of the relevant item of contraband, as borne in the apposite FIR, hence being purportedly effectuated from vehicle bearing No. HP-66-4655, AND with the accused being seated in the aforesaid bus hence being rendered falsified. However, the aforesaid submission is also negatived, given the mandate borne in Sections 91 and 92, of the, Indian Evidence Act. 10. Nowat, the effect of an independent witness, to recovery memo Ext.PW5/B, reneging from his previous statements recorded in writing, is to stand construed alongwith the factum of, his in his cross-examination(s) to which he stood subjected, to by the learned PP, upon, his standing declared hostile, (i) his rather admitting the occurrence, of, his authentic signatures thereon. 10. Nowat, the effect of an independent witness, to recovery memo Ext.PW5/B, reneging from his previous statements recorded in writing, is to stand construed alongwith the factum of, his in his cross-examination(s) to which he stood subjected, to by the learned PP, upon, his standing declared hostile, (i) his rather admitting the occurrence, of, his authentic signatures thereon. Consequently, when he admits the occurrence of his signatures, on, the relevant memo, (ii) thereupon the mandate of Section 91 and 92 of the Indian Evidence Act is squarely attracted, whereupon, he, on admitting the occurrence, of, his authentic signatures thereon, hence stand statutorily estopped, to renege from all the recitals borne thereon, (iii) thereupon the effect of his purportedly orally deposing, in the aforesaid manner or in variance or in detraction to the recitals occurring therein, gets statutorily belittled (iv) rather when he naturally emphatically hence statutorily proves the recitals comprised in the apposite memo, his orally reneging from the recitals borne thereon, holds no evidentiary clout (iv) nor it is legally apt to outweigh the creditworthiness of the testimony(s) of official witnesses qua the recovery of contraband, standing effectuated under recovery memo Ext.PW-5/B, hence from the conscious and exclusive possession of the accused, in the manner narrated thterein (v) contrarily the uncontroverted factum qua his signatures occurring in the relevant exhibits, concomitantly render(s) all the apposite recitals borne therein, to hold the gravest probative worth, moreso when he does not testify, of his appending his signatures thereon, under any duress or undue influence being exerted upon him by the I.O. concerned. The ensuing sequel thereof, is (vi) qua with the statutory estoppel constituted in Sections 91 and 92 of the Indian Evidence Act, AGAINST PWs concerned, hence orally resiling, from, the scribed contents of Ext.PW-5/B, especially when they admit their signatures occurring thereon, to belong to them, thereupon renders unworthwhile besides insignificant the factum qua theirs/his orally deposing in variance of its recorded recitals, (vii) thereupon per se rather an inference stands enhanced qua dehors theirs/his reneging from their/his previous statement(s) recorded in writing, a deduction standing capitalized qua thereupon their/his proving the genesis of the prosecution case. 11. Furthermore, he submits that with PW-6 during the course of his cross-examination, making a disclosure(s) (i) that at the time of production, in Court, of the relevant case property bearing Ext. 11. Furthermore, he submits that with PW-6 during the course of his cross-examination, making a disclosure(s) (i) that at the time of production, in Court, of the relevant case property bearing Ext. P-1, a sixth parcel being retrieved therefrom (ii) He thereupon contends that contrarily with five parcels being prepared, from, the bulk parcel, at the site of occurrence hence ingrain(s) with suspicion, the emanation(s) of a 6th parcel, from Ext, P-1, especially at the time when it was opened in Court. (iii) However, the aforesaid argument, is of no significance, as seizure memo borne in Ext. PW5/B, makes a palpable disclosure of 6 parcel(s) being prepared by the Investigating Officer importantly, at the site of occurrence, after, their separation from the bulk of Charas, recovered from the conscious and exclusive possession of the accused, in the manner disclosed therein. 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. Records be sent back forthwith.