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Himachal Pradesh High Court · body

2017 DIGILAW 246 (HP)

Fanki Ram v. State of H. P.

2017-03-27

SURESHWAR THAKUR

body2017
JUDGMENT : Sureshwar Thakur, J. 1. The instant appeal stands directed against the judgment rendered on 07.05.2007 by the learned Sessions Judge, Solan, H.P. in Sessions trial No.2-S/7 of 2007, where by, the learned trial Court convicted the accused/appellant herein for his committing an offence punishable under Section 20-B of the Narcotic Drugs and Psychotropic Substances Act (here in after referred to as NDPS Act) and sentenced him to undergo rigorous imprisonment for two years and to pay a fine of Rs.10,000 and in default of payment of fine amount to further undergo rigorous imprisonment for a period of six months. 2. The facts relevant to decide the instant case are that on 4.9.2006, ASI Deva Nand along with other police officials of the C.I.A. staff had left Solan at about 2.30 p.m. and had gone to Kunihar on routine checking and detection of crime. When they reached at Kunihar bus stand, a secret information was received by ASI Deva Nand that Fanki Ram son Shri Balak Ram, resident of Village Jabal Jhamrot, Post Office, Koti, Tehsil Kasauli, keeps and sells charas in his house and if his house is checked charas in large quantity can be recovered. Finding the information reliable ASI Deva Nand recorded the reasons of belief and sent it to S.P. Solan through C. Ajay Kumar, which were received by S.P. Solan on the same day at 5.30 p.m.. Thereafter they proceeded towards the house of the accused and on the way two independent witnesses Pritam Singh, Up Pardhan and Om Parkash were associated and police party reached the house of accused where he was found present in his court yard. No person was present with him at that time. He was apprised of the reasons for search. Asi Deva Nand told him about the information and had asked him if he wanted his personal search to be effected before a Magistrate or a Gazetted Officer but he agreed to be searched by the police. His search was then effected by the police party after giving their personal search to the accused but nothing incriminating was found on his personal search and thereafter the search of the house was effected and during the search of the house, a plastic container on which word “mint” was written was found under the bed box which was kept in the main gallery. The container was taken out and opened. The container was taken out and opened. It was found containing charas in the forms of wicks. It was tested by smell by ASI Deva Nand and found it giving smell of charas and identification memo was prepared in this regard in the presence of both the witnesses. The weighing scale and weights were procured from the shop of one Sant Ram and the charas was weighed in presence of the witnesses and on weighment, it was found 450 grams. Two samples of 25 grams each were drawn and then were put into two separate empty cigarettes packets and sealed in cloth parcels separately and the remaining charas was also sealed in separate cloth parcel with same seal “K”. ASI Deva Nand also took sample impressions of the seal used, filled NCRB forms in triplicate and the case property was taken into possession in presence of the witnesses through recover memo. Consequently, an FIR was registered in the concerned police station. Thereafter, the Investigating Officer concerned completed the codel formalities. 3. On conclusion of investigations, into the offence, allegedly committed by the accused, a report under Section 173 of the Code of Criminal Procedure was prepared and filed before the learned trial Court. 4. The accused stood charged by the learned trial Court for his committing offence punishable under Section 20-B of the NDPS Act. In proof of the prosecution case, the prosecution examined 11 witnesses. On conclusion of recording of the prosecution evidence, the statement of the accused under Section 313 of the Code of Criminal Procedure was recorded by the learned trial Court in which the accused claimed innocence and pleaded false implication in the case. 5. On an appraisal of the evidence on record, the learned trial Court, recorded findings of conviction against the accused/appellant here in. 6. The appellant/convict stands aggrieved by the judgment of conviction recorded against him by the learned trial Court. The learned counsel appearing for the appellant/convict has concertedly and vigorously contended qua the findings of conviction recorded by the learned trial Court standing not based on a proper appreciation of the evidence on record, rather, theirs standing sequelled by gross misappreciation of the material on record. Hence, he contends qua the findings of conviction warranting reversal by this Court in the exercise of its appellate jurisdiction and theirs standing replaced by findings of acquittal. 7. Hence, he contends qua the findings of conviction warranting reversal by this Court in the exercise of its appellate jurisdiction and theirs standing replaced by findings of acquittal. 7. On the other hand, the learned Additional Advocate General has with considerable force and vigour, contended qua the findings of conviction recorded by the learned trial Court standing based on a mature and balanced appreciation by it of the evidence on record and theirs not necessitating any interference, rather theirs meriting vindication. 8. 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. 9. The testimonies of the official witnesses are bereft of any vice of any inter se contradictions in their respective depositions qua the prosecution version comprised in their respective examinations-in-chief vis-a-vis their respective testimonies embodied in their respective cross-examinations. Also when their testimonies are shorn off any vice of any intra se contradictions vis-a-vis their respective depositions on oath, hence, constrains this Court to conclude qua their respective testimonies being both credible as well as inspiring. 10. Furthermore, even if, PW-1 one Om Prakash and PW-6 one Pritam Singh, both independent witnesses to the apposite proceedings which stood initiated and concluded at the relevant site, reneged from their respective previous statements recorded in writing, nonetheless the factum of theirs respectively reneging from their previous statements recorded in writing would not undermine the efficacy of the prosecution case qua its propagation qua recovery of contraband standing effectuated from the conscious and exclusive possession of the accused in the manner as enunciated in the apposite FIR borne on Ex. PW8/A. The reason for this Court omitting to belittle their creditworthiness rests upon the fact of both PW-1 and PW-6 admitting their signatures borne on memos Ex.PW1/A, Ex.PW1/B, Ex.PW1/C, Ex.PW1/D, Ex.PW1/E, Ex. PW1/F, and Ex.PW1/G. Both also admit their signatures occurring on bulk parcel, Ex. P-2. PW8/A. The reason for this Court omitting to belittle their creditworthiness rests upon the fact of both PW-1 and PW-6 admitting their signatures borne on memos Ex.PW1/A, Ex.PW1/B, Ex.PW1/C, Ex.PW1/D, Ex.PW1/E, Ex. PW1/F, and Ex.PW1/G. Both also admit their signatures occurring on bulk parcel, Ex. P-2. The effect of both PW-2 and PW-6 respectively admitting their signatures borne on Ex.PA, Ex.PB and Ex.PC besides respectively borne on sample parcel as well as bulk parcel, comprised respectively in Ex.P-1 and P2, is qua their depositions manifestative of theirs repelling besides ousting their previous statements recorded in writing, holding no worth, given the embodiment of the apt legal principle in Sections 91 and 92 of the Indian Evidence Act, qua theirs hence standing estopped to digress from the contents of the afore referred exhibits, preeminently when their respective signatures occurring thereon, stand admitted by both besides with a mandate standing foisted in the afore referred provisions of the Indian Evidence Act qua with proof emanating qua signatures of both existing thereon hence ex facie ipso facto constituting conclusive evidence in proof of the recitals recorded in the apposite memos, whereupon, this Court stands constrained to conclude qua dehors theirs reneging from their previous statements recorded in writing, yet for reasons aforesaid the recitals recorded therein standing rendered to stand conclusively proved by the prosecution. In sequel, with the depositions of the official witnesses acquiring corroborative vigour from hence the conclusively proven recitals of the apposite exhibits whereon both PW-1 and PW-6 admit theirs carrying their signatures, besides with the principle engrafted in Sections 91 and 92 of the Indian Evidence Act against the receipt of oral evidence contrary to the signatured recitals occurring in any document preponderantly when signatures of both PW-1 and PW-6 stand undenied by them, rendered them hence incapacitated to depose at variance or in digression to the recitals occurring in the apposite memos. Consequently, the effect of theirs reneging from their previous statements recorded in writing would not preclude this Court to undermine the efficacy of proof adduced by the prosecution qua the apposite recitals depicted in the apposite memos. In aftermath, this Court concludes with aplomb qua the prosecution succeeding in proving the factum of the genesis of the occurrence embodied in the apposite FIR borne on Ex.PW8/A. 11. In aftermath, this Court concludes with aplomb qua the prosecution succeeding in proving the factum of the genesis of the occurrence embodied in the apposite FIR borne on Ex.PW8/A. 11. Be that as it may, the prosecution was also under a solemn legal obligation to firmly connect the contraband as stood recovered from the purported exclusive and conscious possession of the accused at the site of occurrence under memo Ex.PW1/D with the sample parcel thereof as stood sent for analysis to the FSL concerned, whereon the latter on receiving the apposite samples recorded its affirmative opinion, qua its contents, opinion whereof stands borne on Ex.PW7/D also the prosecution was enjoined to connect the opinion manifested in Ex.PW7/D vis-a-vis the sample parcels at the stage contemporaneous to their production in Court. Firm connectivity inter se, the case property recovered from the purported exclusive and conscious possession of the accused at the site of occurrence vis-a-vis the opinion recorded by the FSL concerned comprised in Ex.PW7/D stood comprised in the apposite road certificate comprised in Ex.PW8/C, connectivity where of for reasons ascribed here in after, hence, stands proven. 12. The investigating officer, had obtained reliable and credible information with visible upsurgings therein qua the accused/respondent holding in his premises some item of contraband. In sequel thereto, the Investigating Officer concerned formed a raiding party, whereupon, he proceeded to arrive at the house of the accused/convict. The Investigating Officer prepared consent memo comprised in Ex.PW1/A holding echoings therein qua the accused/convict holding a statutory right qua his premises standing searched by a Executive Magistrate or a Gazetted Officer also the recitals borne There in holding echoings qua in the event of the accused waiving his statutory right for his premises standing searched by a Executive Magistrate or a Gazetted Officer, thereupon, the accused communicating his consent to the Investigating Officer qua his premises standing searched by him in the presence of the relevant witnesses, whereupon, as unfolded therein the accused communicated his apposite consent qua his premises standing searched by the Investigating Officer, in sequel whereto, the relevant search of the premises stood conducted by the Investigating Officer leading to effectuation of recovery there from of 'charas' under the apposite recovery memo borne on Ex.PW1/D. The consent memo holding the aforesaid unfoldments stands signatured by the relevant witnesses there to. Ex.PW1/D holds the signatures of the witnesses to the relevant recitals occurring therein predominantly qua the one displaying effectuation of recovery of charas weighing 450 grams by the Investigating Officer also his at the relevant site of its recovery preparing two sample parcels of 25 grams each besides his enclosing in a separate parcel the remaining bulk holding a weight of 400 grams. Also he proceeded to as unraveled by the apposite NCB form comprised in Ex.PW7/B, emboss thereon three seal impressions of english alphabet 'K', where after the afore referred exhibit unfolds qua the SHO resealing it with seal 'A'. Prior to the aforesaid effectuation of recovery of charas in the manner delineated in recovery memo Ex.PW1/D, the Investigating Officer concerned under memo Ex.PW1/B and Ex.PW1/C respectively permitted the accused/convict to hold personal search of the members of the raiding party in the presence of witnesses thereto also the Investigating Officer had under memo Ex.PW1/C held a jama talashi of the accused/convict. 13. Be that as it may, the relevant case property stood dispatched under road certificate borne on Ex.PW8/C to the FSL concerned, where upon, the FSL concerned in its opinion comprised in Ex.PW7/D concluded qua the contents of the relevant parcels sent to it for analysis, holding there with in ingredients of charas also their exists intra se congruity inter se seal impressions borne on the relevant parcels, Ex. P-1 and P-2 vis-a-vis the seal impressions recited in the NCB form to stand embossed thereon, at the time contemporaneous to the Investigating Officer concerned effectuating recovery of charas. P-1 and P-2 vis-a-vis the seal impressions recited in the NCB form to stand embossed thereon, at the time contemporaneous to the Investigating Officer concerned effectuating recovery of charas. The description of seal impressions as stood embossed thereon at the earliest stage as unraveled in the apposite NCB form comprised in Ex.PW7/B, holds synonimity vis-a-vis the description of the seal impressions borne on the relevant parcels of charas, seal impression whereof depicted in specimen of seal impressions drawn on cloths Ex.PW11/A and Ex.PW7/A, ultimately, the report of the FSL concerned comprised in Ex.PW7/D , makes a disclosure qua the imperative congruity qua the description of seal impressions embossed on the relevant case property/parcels received at the laboratory concerned holding synonimity with the seal impressions reflected to be borne thereon prior thereto in recovery memos comprised in Ex.PW1/D, NCB form comprised in Ex.PW7/B as also, on the road certificate, wherefrom it is befitting to conclude qua the prosecution succeeding in establishing the factum probandum of intra se connectivity qua the descriptions of seal impressions occurring on the relevant parcels at the stage whereat they stood received in the laboratory concerned. However, the aforesaid connectivity would not per se enhance any conclusion qua thereupon, the prosecution succeeding in establishing qua the relevant parcel, whereupon the FSL concerned recorded an opinion qua the contents held there with in holding ingredients of charas holding connectivity with the one which stood recovered under the apposite recovery memo, unless at the material stage, qua the relevant case property standing produced before the learned trial Court, also, displaying an evident apt connectivity qua the relevant prima dona factum. A thorough perusal of the testimony of PW-2, where to whom the case property stood shown by the learned PP unravels qua his making a marked explicit enunciation therein qua parcels Ex.P-1 and P-2 holding analogity with the relevant memo comprised in Ex.PW1/D, where under the recovery of the relevant item of contraband stood effectuated, thereupon the prosecution has succeeded in proving on all fronts its case to the fullest. 14. The learned counsel appearing for the accused/convict has contended with vigour qua the testimony of IO qua his receiving a secret information qua the accused holding charas in his premises standing contradicted by PW-2 and PW-3, whereupon, he concerts to draw leverage. 14. The learned counsel appearing for the accused/convict has contended with vigour qua the testimony of IO qua his receiving a secret information qua the accused holding charas in his premises standing contradicted by PW-2 and PW-3, whereupon, he concerts to draw leverage. However, the aforesaid contradictions would not unsettle the entire genesis of the prosecution case, anvilled upon the relevant connectivity for the reasons aforesaid standing unflichingly proven at all the relevant stages commencing from the storage of the case property in the malkhana concerned, its dispatch under the apposite R.C. to the FSL concerned also its retrieval from the latter place upto the police station concerned and ultimately at the stage of its production in Court, whereupon, reiteratedly, the charge against the accused stands proved. 15. For the reasons which have been recorded here in above, this Court holds that the learned trial Court has appraised the entire evidence on record in a Whole some and harmonious manner apart there from the analysis of the material on record by the learned trial Court does not suffer from 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 forth with.