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Himachal Pradesh High Court · body

2017 DIGILAW 368 (HP)

Umed Singh v. State of H. P.

2017-04-18

AJAY MOHAN GOEL, SANJAY KAROL

body2017
JUDGMENT : Sanjay Karol, J. 1. In relation to FIR No.96/2015, dated 17.04.2015, registered at Police Station Sadar, District Kullu, H.P., accused stands convicted 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). He is to undergo rigorous imprisonment for a period of ten years and pay fine of Rs.1 lac and in default thereof further undergo rigorous imprisonment for a period of two years. 2. Trial Court found the prosecution to have established its case of having recovered 1 kg 460 grams of charas from the conscious possession of the accused. It was on 17.04.2015, that the police party recovered it from a place known as Bhurji (Malana road), Kullu, District Kullu, H.P. 3. Through the testimonies of C. Nitish Kumar (PW.1), Ashok Kumar (PW.2) and HC Deepak Kumar (PW.12), prosecution establishes recovery of the contraband substance. Through the testimonies of Nitish Kumar and SI Jitender Kumar (PW.8), prosecution wants to establish that Rukka (PW.1/D) was carried to the Police Station and same day FIR (Ex.PW.8/A) was registered. Through the testimonies of SI Jitender Kumar and HC Gajender Pal (PW.3), prosecution wants to establish that the case property so recovered was resealed at the Police Station and deposited in the Malkhana. Further C. Sunil Mahant (PW.6), carried the same to the Forensic Science Laboratory, Junga, where it was examined and report (Ex.PX) brought back. Through the testimonies of C. Ajay Sharma (PW.11) and HC Deepak Kumar, prosecution wants to establish that information about the incident came to be passed on to the superior officer. 4. Significantly, in the instant case, prosecution did associate an independent person as a witness while carrying out search and seizure operations. In this regard, the said person, namely, Ashok Kumar (PW.2) has fully supported the prosecution. 5. Trial Court has succinctly dealt with the issue of minor contradictions and inconsistencies in the testimonies of the aforesaid witnesses, they being trivial in nature. Before this Court, much emphasis is laid on the fact that Ashok Kumar stands introduced by the police, only to falsely implicate the accused. Also no endeavour was made by the police to associate any respectable person of the locality, while carrying out search and seizure operations. 6. Before this Court, much emphasis is laid on the fact that Ashok Kumar stands introduced by the police, only to falsely implicate the accused. Also no endeavour was made by the police to associate any respectable person of the locality, while carrying out search and seizure operations. 6. At this juncture, one may only observe the defence and the alibi taken by the accused, which in his own words is reproduced as under:- “Q.35:- Why this case is made against you? Ans:- False case has been made against me. Police party has recovered the charas from one Bal Krishan and said Bal Krishan has not been interrogated by the police. Q.36:- Why the witnesses have deposed against you? Ans:- All the witnesses were influenced by the police, so they have deposed against me. Q.37:- Do you want to say anything else? Ans:- I am innocent. I have been falsely implicated in this case. On that day, I was coming back from Malana with my family after Mandir Darshan.” 7. Noticeably no evidence in defence was led by the accused. Who is this Bal Krishan has also not been disclosed by him. Also neither he nor his family members protested against his illegal detention at any point in time. As required by law, accused was produced before the Magistrate, when also no such grievance was made. Why would police influence the witnesses or falsely implicate the accused, remains undisclosed. The defence remains improbablized. 8. Be that as it may, independent of the defence taken by the accused, this Court is obliged in law, to appreciate the evidence led by the prosecution, leading to his conviction and ascertain as to whether the findings returned are borne out from the record or not. 9. HC Deepak Kumar (PW.12), who also conducted the investigation, states that on 17.04.2015, while on duty, at a place near Bhurji (Malana road) they saw the accused come from Malana. Noticing the police party, accused got perplexed and as such, he was asked to disclose his particulars, which he did. Suspecting that he may be carrying some illegal article in his bag, he was asked to wait, for the reason that police wanted to search him in the presence of an independent witness. Noticing the police party, accused got perplexed and as such, he was asked to disclose his particulars, which he did. Suspecting that he may be carrying some illegal article in his bag, he was asked to wait, for the reason that police wanted to search him in the presence of an independent witness. Since the place was secluded being a jungle and there was no possibility of associating anyone nearby, police waited, when, in the meanwhile, one taxi bearing No.HP-01K- 2460, came from Malana side. On signal, the driver stopped and disclosed his identity as Ashok Kumar (PW.2). By associating him, police searched the bag from which one parcel wrapped in a Khakhee coloured cellotape was recovered. When opened, police found soft sticky stuff, which appeared to be cannabis. Accordingly police took the same into possession vide Memo (PW.1/B), after it was sealed with six seals of impression ‘D’. Sample seal was handed over to Ashok Kumar. Also photographs (Ex.PW.12/A-1 to Ex.PW.12/A-20) were taken recording the search and seizure operations. He categorically records presence of other police officials, including C. Nitish Kumar (PW.1), who took the Rukka (Ex.PW.1/D) to the Police Station, which led to the registration of FIR (Ex.PW.8/A). NCB forms (Ex.PW.3/A) were also filled up on the spot. The accused was arrested and at the Police Station, case property entrusted to SI Jitender Kumar (PW.8) for the purposes of resealing. Also special report (Ex.PW.11/A) sent to the superior authority. This person has also testified the case property produced in the Court to be the one which was sent for chemical analysis and report thereof, taken on record. This witness has totally withstood the test of cross-examination. Accused has failed to impeach his credit or in any manner render his testimony to be doubtful. He has explained the reason for not associating the driver of the vehicle, in which the police party had travelled. He is categorical that proceedings were almost complete. Significantly, the issue of presence of police party and the accused on the spot; accused having been searched; contraband substance recovered from him; and conduct of the proceedings on the spot, remain established on record, beyond reasonable doubt, through his testimony, thus making the statutory presumption so contained under Section 35 of the Act applicable in the instant case. 10. Significantly, the issue of presence of police party and the accused on the spot; accused having been searched; contraband substance recovered from him; and conduct of the proceedings on the spot, remain established on record, beyond reasonable doubt, through his testimony, thus making the statutory presumption so contained under Section 35 of the Act applicable in the instant case. 10. Not only that, on material facts, we find testimonies of C. Nitish Kumar (PW.1) and Ashok Kumar (PW.2) to be fully corroborating the version of the Investigating Officer. Even they have withstood the test of cross-examination and their testimonies remain unshattered. Significantly, Ashok Kumar is an independent witness. Very rarely one finds an independent witness to have supported the prosecution and that too in a case of recovery of a psychotropic substance. This witness is categorical that the contraband substance came to be recovered from the conscious possession of the accused in his presence. He is certain that seals were affixed on the spot and that papers were prepared in his presence, to which he himself is a signatory. He has no reason to falsely implicate the accused. His presence on the spot stands reasonably explained. He is a taxi driver and was passing through the area at the relevant point in time. 11. SI Jitender Kumar (PW.8) is categorical of having received the case property from the Investigating Officer HC Deepak Kumar (PW.12), which he resealed and entrusted to MHC Gajender Pal (PW.3). He also registered the FIR. Factum of resealing remains uncontroverted on record. He does admit that NCB form was not in a sealed parcel, but then it would not make any difference. It is not that it was tampered with. 12. One finds MHC Gajender Pal (PW.3) to have entrusted the case property to C. Sunil Mahant (PW.6), who deposited it at the concerned Laboratory. All the witnesses have affirmatively deposed that till and so long the case property remained with them, it was not tampered with. Report of the FSL (Ex.PX) evidences the factum of recovered stuff to be a psychotropic substance i.e. charas. Also police took adequate precaution of notifying the superior officer which fact is evident from the testimonies of C. Ajay Sharma (PW.11) and C. Deepak Kumar (PW.12). 13. Report of the FSL (Ex.PX) evidences the factum of recovered stuff to be a psychotropic substance i.e. charas. Also police took adequate precaution of notifying the superior officer which fact is evident from the testimonies of C. Ajay Sharma (PW.11) and C. Deepak Kumar (PW.12). 13. Hence, cumulatively affirmed, 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. 14. 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. 15. Hence in our considered view, prosecution has been able to discharge burden of proving the recovery of the contraband substance from the conscious possession of the accused, beyond reasonable doubt. It cannot be said that, while delivering judgment dated 08.09.2016 by Special Judge-II, Kullu, H.P., in Sessions Trial No.39 of 2015, titled as State of Himachal Pradesh Versus Umed Singh, the Court erred in correctly and completely appreciating the testimonies of the prosecution witnesses. 16. 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.