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2017 DIGILAW 367 (HP)

Jog Raj v. State of Himachal Pradesh

2017-04-18

AJAY MOHAN GOEL, SANJAY KAROL

body2017
JUDGMENT : Sanjay Karol, J. 1. Trial Court found the prosecution case of recovery of 3 k.g. & 600 grams of charas, from the conscious and exclusive possession of accused Jog Raj, to have been proven through the testimonies of police officials namely HC Soni Ram (PW-3), HC Ashok Kumar (PW-6) and Whether reporters of Local Papers may be allowed to see the judgment? SI Arjun Singh (PW-8), despite independent witnesses Sumit Kumar (PW-1) and Sandeep Vyas (PW-2) not having supported its case. 2. In relation to FIR No. 34/2013, dated 29.10.2013, registered at Police Station State CID Bharari, Shimla, accused was charged for having committed an offence punishable under the provisions of Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act). In terms of the impugned judgment, he stands convicted and sentenced to serve imprisonment as also pay fine. 3. The incident relates back to 29.10.2013, when police received a secret information about the accused carrying the contraband substance. Such information, so received by PW-8, was communicated to the superior officer, through PW-3. By associating independent witnesses PW-1 and PW-2, the Investigating Officer PW-8, in the presence of PW-6, intercepted the accused at Ghughar- Tanda Pakhdandi, Tehsil Palampur, District Kangra and recovered the contraband substance. Ruka (Ext. PW-8/C), so carried by PW-6, led to the registration of F.I.R. (Ext.PW- 9/A) by Inspector Varinder Chauhan (PW-9). With the completion of proceedings on the spot, the contraband substance was kept in the maalkhana and sent through HC Sahi Ram (PW-7) for chemical analysis. Report of the chemical analyst (Ext.PW-8/H) was obtained and taken on record. Also information was sent to the superior officer, through HHC Manoj Kumar (PW-4) so received by HHC Ravinder Kumar (PW-5). This, in effect, is the prosecution case. 4. Having heard learned counsel for the parties as also perused the record, this Court is in full agreement with the decision of conviction and sentence so passed by the trial Court. 5. SI Arjun Singh (PW-8), the Investigating Officer, has testified in Court that on 29.10.2013, during the course of his patrol duty at bus stand Palampur, at about 5.00 p.m., he received a secret information that one Jog Raj resident of Paddar, District Mandi, who is wearing a pink shirt and blue jeans is proceeding towards Ghughar-Tanda Pakhdandi from bye-pass road Palampur. In the black coloured bag so carried by him there may be charas. Such information (Ext. PW-5/B) was immediately sent to the Deputy Superintendent of Police, North Zone Dharamshala through HC Soni Kumar (PW-3). A raiding party was constituted and Sumit Kumar (PW-1) and Sandeep Vyas (PW-2) were associated as independent witnesses. Upon reaching the Ghughar-Tanda Road, police apprehended the accused, who was walking on foot. The particulars so disclosed of the suspect, matched with the information received by the police. Hence he was informed of his statutory rights. The accused offered to be searched by the police party on the spot. Accordingly, memo (Ext. PW-8/A) was prepared. From the bag, so carried by him, charas in the shape of sticks was recovered, which, when weighed, was found to be 3 k.g. and 600 grams. The contraband substance so recovered was kept inside the bag itself, which was sealed with six seal impressions of seal-E, impression whereof was also taken on a separate piece of cloth. NCB form (Ext. PW-8/J), in triplicate, was filled up and ruka (Ext. PW-8/C) sent through PW-6, who sent it by FAX, receipt whereof is Ext.PW-6/A. With the completion of proceedings on the spot, accused was arrested and the contraband substance sent through PW-6 itself to be deposited with the S.H.O., Police Station Bharari, Shimla. Special report (Ext. PW-5/C) was prepared and sent to the Dy. Superintendent of Police, CID Northern Range Dharamshala and report (Ext.PW-8/H) of the State Forensic Science Laboratory, Junga also obtained and taken on record. 6. Now when one peruses the cross examination part of his testimony, one finds him to have fully withstood the same and his deposition to be clear and consistent without any contradiction. The witness is totally trustworthy and his version fully inspiring in confidence. His credit remains unimpeachable. Simply because he did not record the statement of SHO, Police Station CID Bharari, under Section 161 Cr.PC, itself would not vitiate the trial. What is required to be seen is as to whether genesis of the prosecution case, of recovery of the contraband substance from the conscious possession of the accused is inspiring in confidence or not. On the question of prior information, the accused having been searched and recovery of the contraband substance at Ghughar-Tanda road, is concerned, this witness is clear. What is required to be seen is as to whether genesis of the prosecution case, of recovery of the contraband substance from the conscious possession of the accused is inspiring in confidence or not. On the question of prior information, the accused having been searched and recovery of the contraband substance at Ghughar-Tanda road, is concerned, this witness is clear. Significantly his version to the effect that he constituted a raiding party by associating independent witnesses goes unrebutted. It is in this context, we examine the testimonies of these persons, who admit their signatures on document i.e. recovery memo (Ext. PW-1/A). 7. In Ramesh Harijan vs. State of Uttar Pradesh, (2012) 5 SCC 777 the Court held that seizure/recovery witnesses though turning hostile, but admitting their signatures/thumb impressions on recovery memo, could be relied upon by prosecution and that: “23. It is a settled legal proposition that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross examine him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on a careful scrutiny there of. (Vide: Bhagwan Singh v. The State of Haryana, AIR 1976 SC 202 ; Rabindra Kumar Dey v. State of Orissa, AIR 1977 SC 170 ; Syad Akbar v. State of Karnataka, AIR 1979 SC 1848 ; and Khujji @ Surendra Tiwari v. State of Madhya Pradesh, AIR 1991 SC 1853 ). 24. In State of U.P. v. Ramesh Prasad Misra & Anr., AIR 1996 SC 2766 , this Court held that evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon. A similar view has been reiterated by this Court in Balu Sonba Shinde v. State of Maharashtra, (2002) 7 SCC 543 ; Gagan Kanojia & Anr. v. State of Punjab, (2006) 13 SCC 516; Radha Mohan Singh @ Lal Saheb & Ors. A similar view has been reiterated by this Court in Balu Sonba Shinde v. State of Maharashtra, (2002) 7 SCC 543 ; Gagan Kanojia & Anr. v. State of Punjab, (2006) 13 SCC 516; Radha Mohan Singh @ Lal Saheb & Ors. v. State of U.P., AIR 2006 SC 951 ; Sarvesh Narain Shukla v. Daroga Singh & Ors., AIR 2008 SC 320 ; and Subbu Singh v. State by Public Prosecutor, (2009) 6 SCC 462 . Thus, the law can be summarised to the effect that the evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defence. (See also: C. Muniappan & Ors. v. State of Tamil Nadu, AIR 2010 SC 3718; and Himanshu @ Chintu v. State (NCT of Delhi), (2011) 2 SCC 36 )” [Emphasis supplied] 8. Now in the instant case, independent witnesses Sumit Kumar (PW-1) and Sandeep Vyas (PW-2) admit their signatures on the memos and the parcel of charas. For the same, the only explanation forthcoming is that they were asked to do so by the police, which they did at the police station. But then why would they do so? They were not under threat, coercion or intimidation. In fact, that they signed the document on the spot, at the time of recovery of the contraband substance, stands fully established not only by SI Arjun Singh (PW-8) but as is evident from the testimony of PW-6, it is clear that even he along with these persons was member of the raiding party. All proceedings took place in their presence. Report (Ext. PW-5/B), so prepared under Section 42(2) of the Act, does record the factum of formation of a raiding party comprising of these independent witnesses. Thus notwithstanding the fact that they did try not to support the prosecution, it cannot be said that through their testimonies, two views, entitling the accused to a benefit of doubt, with regard to recovery have emerged. Even otherwise, independently, this Court is of the considered view that prosecution case of recovery of the contraband substance from the conscious possession of the accused stands fully established through the testimonies of police officials. 9. Even otherwise, independently, this Court is of the considered view that prosecution case of recovery of the contraband substance from the conscious possession of the accused stands fully established through the testimonies of police officials. 9. In this backdrop, the onus, statutory in nature, so contained in Section 35 of the Act, heavily lied upon the accused to establish his innocence, as is so claimed by him in his statement so recorded under the provisions of Section 313 Cr. P.C. At this juncture, it be also observed that though initially accused had expressed his desire to lead evidence but subsequently, for reasons best known to him, chose not to do so. 10. From the report (Ext. PW-8/H) it is evidently clear that the contraband substance is charas. In any case, there is no serious dispute about the recovered stuff to be a contraband substance. 11. What further needs to be examined is as to whether it remained in safe custody and was tampered with or not. On this issue also there is no doubt in the mind of the Court. SI Arjun Singh (PW-8) sent the case property through HC Ashok Kumar (PW-6), who deposited it with MHC Parkash Chand (PW-10). Proper entry in the maalkhana register (Ext. PW-10/A) was made and on 31.10.2013, HC Sahi Ram (PW-7) took the same and deposited it at State Forensic Science Laboratory, Junga. Now all these witnesses, in no uncertain terms, have clearly deposed that till and so long the case property remained with them, it was not tampered with. Proper entry indicating the movement thereof, was made in the relevant registers and all other relevant documents prepared. Even by way of corroborative evidence, one finds the information to have been furnished to the appropriate authority, both prior and subsequent to the recovery of the contraband substance, which fact, is evident from the testimonies of HC Soni Ram (PW-3), HHC Manoj Kumar (PW-4), HHC Ravinder Kumar (PW-5), HC Ashok Kumar (PW-6) and SI Arjun Singh (PW-8). 12. Hence cumulatively examined, it cannot be said that the Court below erred in completely and correctly appreciating the testimonies of the prosecution witnesses and holding the accused guilty of the charged offence. Even on the question of sentence, also it cannot be said that Court below erred or that it failed to judiciously exercise the discretion so vested in it. 13. Even on the question of sentence, also it cannot be said that Court below erred or that it failed to judiciously exercise the discretion so vested in it. 13. The ocular version as also the documentary evidence clearly establishes complicity of the convict in the alleged crime. The testimonies of prosecution witnesses are totally reliable and their depositions believable. There are no major contradictions rendering their version to be unbelievable. 14. Hence, in our considered view, prosecution has been able to discharge the burden of proving the recovery of the contraband substance from the conscious possession of the accused, beyond reasonable doubt. It cannot be said that the trial Court erred in correctly and completely appreciating the testimonies of the prosecution witnesses. 15. For all the aforesaid reasons, we find no reason to interfere with the judgment passed by the trial Court. The Court has fully appreciated the evidence placed on record by the parties. There is no illegality, irregularity, perversity in correct and complete appreciation of the material so placed on record by the parties. Findings cannot be said to be erroneous in any manner. Hence, the appeal is dismissed. Records of the Court below be immediately sent back.