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Himachal Pradesh High Court · body

2017 DIGILAW 796 (HP)

Ghanshyam alias Shyam Lal v. State of H. P.

2017-07-13

SURESHWAR THAKUR

body2017
JUDGMENT : Sureshwar Thakur, J. 1. The instant appeal stands directed against the impugned judgment of 10.9.2010, rendered by the learned Special Judge, Fast Track, Kullu, H.P. in Sessions Trial No. 46 of 2009, whereby the learned trial Court convicted the appellant (hereinafter referred to as “accused”) for his committing an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “the Act”) also sentenced him as follows:- “.............to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs. 10,000/- and in default to undergo simple imprisonment for a period of one month for the commission of offence under Section 20(b)(ii) (A) of NDPS Act. The period of detention undergone by the convict shall be set off as per provisions contained under Section 428 of the Code of Criminal Procedure..........” 2. Brief facts of the case are that PW-2 HC Narain Chand, PW-1C. Bhupinder Singh and C. Vikas Kumar were going from Dohlu nullah towards village Shird on 3.12.2008. Accused came from village Shird towards the police party at about 4.15 pm. When the accused reached at a distance of about 10 meters from police party, he returned, took out a polythene envelope from the right pocket of the jacket and threw it on the ground. Accused started going backward with quick paces. He was apprehended and he revealed his name as Ghanshyam alias Shyam Lal S/o Shiv Ram on inquiry. C. Bhupinder Singh was sent to call some independent person. He returned after about 30 minutes and told Narian Chand that he found no independent person. C. Bhupinder and C. Vikas were associated as witnesses and HC Narian Chand gave his personal search to the accused in the presence of witnesses. Nothing incriminating was found in his possession and memo Ext. PW-1/A was prepared regarding the personal search. The polythene envelope, which was coloured white and was thrown by accused (Ex. P3) was picked up and was checked. It was found to be containing stick like charas (Ex.P4) wraped in polythene. It was dark and there was no source of light. Hence, site plan Ex. PW-2/A was prepared at the spot by PW-2 HC. Narian Chand. The police went to police station Manali along with accused, polythene envelope containing charas and the witnesses. It was found to be containing stick like charas (Ex.P4) wraped in polythene. It was dark and there was no source of light. Hence, site plan Ex. PW-2/A was prepared at the spot by PW-2 HC. Narian Chand. The police went to police station Manali along with accused, polythene envelope containing charas and the witnesses. The recovered charas was weighed with the help of electronic balance in I.O’s room and its weight was found to be 340 grams. Some charas was broken from the recovered pieces of charas and two samples each weighing 25 grams were separated for the purpose of chemical analysis. These samples were put in separate polythene envelops and were wrapped in separate pieces of cloth. The remaining charas was put in the same polythene envelope from which it was recovered and it was sealed in a separate parcel (Ex.P1). All the parcels were sealed with four impressions of seal H. Form NCB-1 Ex. PW2/B was filled in triplicate. Seal impression was taken separately on the NCB 1 form. Sample seals were also taken separately on separate pieces of cloth and one such impression is Ex. PW1/B. The seal was handed over to witness Bhupinder after the use. All the parcels were seized vide seizure memo Ex. PW-1/C. Signatures of witnesses were obtained on the memo. The copy of seizure memo was supplied to accused and his signatures were obtained on the memo. Rukka Ex. PW-2/C was prepared, which was handed over to C. Bhupinder who carried it to the police station where FIR Ex. PW-7/A was registered. Accused was arrested and memo of arrest Ex. PW-1/D was prepared. The case file was sent through C. Bhupinder who handed it over to HC. Narian Chand. HC Narain Chand filled the relevant columns of the documents prepared by him. Case property was produced before Inspector, Om Prakash (PW-7) who resealed the parcels with four impressions of seal N and filled columns Nos. 9 to 11 of NCB 1 form. Specimen of seal was obtained on the NCB1 form and on the separate pieces of cloth and one such impression Ex. PW-7/B. Inspector Om Prakash handed over the sample parcels NCB1 form sample seals and other documents to MHC. Mohinder, who made an entry in the register No. 19 at Sr. No. 555 (Ex. PW-5/A and deposited these in Malkhana. Specimen of seal was obtained on the NCB1 form and on the separate pieces of cloth and one such impression Ex. PW-7/B. Inspector Om Prakash handed over the sample parcels NCB1 form sample seals and other documents to MHC. Mohinder, who made an entry in the register No. 19 at Sr. No. 555 (Ex. PW-5/A and deposited these in Malkhana. MHC Mohinder handed over one sample parcel, docket, sample seals H and M and other documents to C. Manigiri (PW-8) with the directions to deposit these at FSL on 5.12.2008 vide RC No. 193 of 2008 (Ex. PW5/B. The case property was deposited along with the documents at FSL by C. Manigiri on 6.12.2008 and receipt was handed over to MHC on return. Special report (Ex. PW2/D) was prepared which was handed over to C. Om Prakash (PW-3) with the directions to carry it to S.P. Kullu. C. Om Prakash carried the special report to S.P. Kullu on 5.12.2008 at 2 pm. S. P. Kullu made the endorsement on the special report and handed over the special report to ASI Lachhu Ram (PW-6). ASI Lachhu Ram made an entry in the relevant register at S. No. 68 (Ex. PW-6/A and filed it in the record. After the chemical analysis, the result of chemical analysis Ex. PW2/E was issued in which it was shown that sample contained charas, which was having 28.09% W/W resin in it. The statements of witnesses were recorded as per their versions and after the completion of the investigations, the challan was prepared and presented before the Court. 3. The accused stood charged by the learned trial Court for his committing an offence punishable under Section 20 of the Act to which he pleaded not guilty and claimed trial. 4. In order to prove its case, the prosecution examined 8 witnesses. On closure of prosecution evidence, the statement of the accused under Section 313 of the Code of Criminal Procedure was recorded, in which he pleaded innocence and claimed false implication. He chose to lead evidence in defence and examined two witnesses. 5. On an appraisal of evidence on record, the learned trial Court returned findings of conviction upon the accused, for his committing an offence punishable under Section 20 of the Act. 6. He chose to lead evidence in defence and examined two witnesses. 5. On an appraisal of evidence on record, the learned trial Court returned findings of conviction upon the accused, for his committing an offence punishable under Section 20 of the Act. 6. The learned counsel appearing for the accused 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 evidence on record rather theirs standing se-quelled by gross mis-appreciation by it, of 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 being replaced by findings of acquittal. 7. The learned Additional Advocate General has with considerable force and vigor contended qua the findings of conviction recorded by the Court below standing based on a mature and balanced appreciation of evidence on record and theirs not necessitating interference rather 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. Under recovery memo borne in Ext. PW-1/C, the Investigating Officer concerned effectuated recovery of 340 grams of bulk “Bhang” from the purported conscious and exclusive possession of the accused/convict. From the bulk of Bhang holding a weight 340 grams, the Investigating Officer concerned separated 25 grams each, 25 grams each of Bhang, separated from bulk thereof holding a weight of 340 grams, stood respectively sealed inside two cloth parcels, upon each whereof he embossed seal impressions of English alphabet ‘H’. Also, the remaining quantum of contraband stood sealed in a cloth parcel whereupon the Investigating Officer embossed seal impressions of English alphabet ‘H’. The aforestated recovery memo borne in Ext. PW-1/C stood signatured by the accused/convict besides by witnesses’ thereto. The NCB form, borne in Ext. PW-2/B holds in respect of the aforesaid reflections occurring in Ext. PW-1/C absolute consonance therewith. At the police station, the SHO embossed on all cloth parcels’ holding therein Bhang, four re-seal, seal impressions of English alphabet ‘N’. One sample parcel holding therein 25 grams of Bhang stood dispatched under RC borne in Ext. PW-5/B to the FSL concerned. The reflections in the apposite RC borne in Ext. PW-1/C absolute consonance therewith. At the police station, the SHO embossed on all cloth parcels’ holding therein Bhang, four re-seal, seal impressions of English alphabet ‘N’. One sample parcel holding therein 25 grams of Bhang stood dispatched under RC borne in Ext. PW-5/B to the FSL concerned. The reflections in the apposite RC borne in Ext. PW-5/B, ‘displays’ in respect of descriptions of embossings on the relevant parcel delineated therein, of, seal impressions ‘H’ and re-sealing, seal impressions ‘N’, “absolute congruity” with reflections in respect thereof borne in Ext. PW1/C and in Ext. PW2/B. The FSL concerned, on receiving under Ext. PW5/B, one sample parcel of Bhang holding a weight of 25 grams returned thereon under its report borne in Ext. PW2/E, an opinion of its contents being “Bhang”. In proof of the relevant intrase congruitys existing interse the recovery of contraband from the purported conscious and exclusive possession of the accused “through” memo Ext. PW1/C vis-a-vis its production in Court, all the prosecution witnesses to whom it stood shown in Court though testify with absolute intra-se corroboration in respects thereof, yet despite theirs testifying with absolute interse corroboration in respect of the aforestated relevant intrase congruitys interse it vis-a-vis the apt descriptions borne in Ext. PW1/C and in Ext. PW2/B beside despite all the aforesaid relevant intrase congruitys being graphically visible besides discernable upon it vis-a-vis on perusal of the aforesaid exhibits, nonetheless the learned defence counsel “though” thereat held the best opportune moment, to, by putting apposite suggestions to each of the prosecution witnesses, hence make a concert to belie the apt connectivity interse the production of case property in Court, vis-a-vis its seizure from the purported conscious and exclusive possession of the convict “under Ext. PW1/C”, besides his thereat despite holding an opportunity to delink the report of the FSL concerned borne in Ext. PW2/B from the production of case property in Court, yet he thereat did not put any efficacious suggestions’ to any of the prosecution witnesses. PW1/C”, besides his thereat despite holding an opportunity to delink the report of the FSL concerned borne in Ext. PW2/B from the production of case property in Court, yet he thereat did not put any efficacious suggestions’ to any of the prosecution witnesses. Moreover, the learned defence counsel despite sighting the case property also his despite holding an opportunity to sight all memos prepared in respect thereof, for hence his making decipherings therefrom, reflective of want of any intrase congruitys in respect of seal impressions reflected in the memos and upon the case property produced in Court “yet” his apparently not availing the aforesaid opportunities rather his even after making therefrom the relevant decipherments, “permitting it” to be exhibited in Court, thereupon garners a conclusion of hence the defence conceding to the case property which stood produced in Court “holding” absolute connectivity on all quarters vis-a-vis recoverys thereof effectuated “through” memo comprised in Ext. PW1/C. Moreover, a further conclusion is also galvanized of the defence acquiescing “to” the case property thereat holding absolute congruitys with the opinion pronounced upon Ext.P2 by the FSL concerned. In addition, a conclusion is also marshaled, of the defence hence acquiescing to an imminent congruitys existing intra-se the opinion pronounced by the FSL concerned upon one of the sealed parcels borne in Ext. P2, parcel whereof stand delivered to it under the apposite RC, for its pronouncing an opinion thereon, besides the affirmative opinion pronounced thereon hence proving the prosecution case to the hilt. 10. P2, parcel whereof stand delivered to it under the apposite RC, for its pronouncing an opinion thereon, besides the affirmative opinion pronounced thereon hence proving the prosecution case to the hilt. 10. Be that as it may the effect, if any, of the prosecution not tendering into evidence the relevant abstracts of Malkhana Register, for establishing the fact of the case property, at the time contemporaneous to its production in Court, whereat it stood shown to the prosecution witnesses, “it” standing retrieved from the mallkhana concerned, by its Incharge after the latter making in the relevant register apposite entries in respect thereof also thereafter it standing transmitted to the Public Prosecutor concerned besides absence, if any, of aforestated communications to the learned trial Court by the learned Public Prosecutor concerned, at the time of production thereat of case property also failure if any of the Public Prosecutor, to, at the stage contemporaneous to the production of the case property in Court, hence make a communication to the learned trial Court that he had received it, through, authorized officials, for thereupon emphatic purported erosion of the tenacious testifications’ of the prosecution witnesses hence emanating, is rendered un-worthwhile besides insignificant Significantly, when dehors absence of the aforestated communications’ the probative tenacity of the interse corroborative testifications’ of the aforestated witnesses, has, for reasons ascribed hereinabove prodded this Court to garner a firm conclusion in respect of the relevant apt intra-se linkages invincibly emerging interse the recovery of contraband under Ext. PW1/C from the site of occurrence from the conscious and exclusive possession of the accused/convict vis-a-vis its production before the Court. 11. Furthermore, despite all the relevant parcels holding the signatures of the accused/ convict also of the recovery witnesses thereto, yet the accused/convict failed to make any attempt to belie occurrence of his signatures on any of the parcels nor has attempted to belie his signatures appended upon recovery memos. 11. Furthermore, despite all the relevant parcels holding the signatures of the accused/ convict also of the recovery witnesses thereto, yet the accused/convict failed to make any attempt to belie occurrence of his signatures on any of the parcels nor has attempted to belie his signatures appended upon recovery memos. The effect of accused/convict, not, attempting to belie the occurrence of his signatures, on all, the relevant parcels nor his attempting to belie the occurrence of his signatures upon the relevant memos “is” of his hence acquiescing to the fact of his signatures borne thereon not lacking in authenticity, wherefrom the ensuing sequel, is, of his being construed to be imputing truth besides validity to the contents borne in the relevant parcels besides to all the recitals/contents borne on all the relevant memos. 12. Even though, the defence hereat contests the factum of the voluntariness of the accused/convict embossing his signatures on all the relevant memos besides on all the parcels “yet” a reading of the cross-examinations of the prosecution witnesses’ “importantly” omits to reveal “of” the learned defence counsel thereat putting apposite suggestions’ to them wherein echoings are held in respect of the Investigating Officer concerned by meteing proactive threats and intimidations vis-a-vis the accused “his hence” coercing him to append his signatures on all the relevant parcels also on all the relevant memos nor obviously when no affirmative elicitations thereto emanated from each of the prosecution witnesses’ wherefrom the ensuing inevitable corollary, is, of the learned defence counsel by hence omitting to, at the earliest contest the voluntariness of the accused appending his signatures thereon, his thereupon acquiescing to the factum of the accused voluntarily appending his signatures thereon. A further concomitant of the aforesaid inference, is, of the accused acquiescing vis-a-vis efficacious recovery of Bhang weighing 340 grams standing effectuated from his conscious and exclusive possession. 13. At this stage, the learned counsel appearing for the accused/convict has contended with much vigor that the site wherefrom the Investigating Officer concerned, effectuated recovery of Bhang, from the conscious and exclusive possession of the accused/convict, is not the one which stands depicted in the site plan, rather recovery thereof stood effectuated elsewhere, wherefrom he has made an attempt to contend that the entire proceedings drawn in respect “of recovery” of Bhang, purportedly effectuated “from” the conscious and exclusive possession of the accused/convict “through” memo borne in Ext. PW1/C, standing hence vitiated. For the aforesaid submission to hold a grave effect, it was enjoined to be rested upon firm evidentiary strata, comprised in suggestions’ being put by the defence counsel to each of the prosecution witnesses’, holding portrayals therein of thereupon the Investigating Officer contriving the place of occurrence, also his hence proceeding to falsely implicate the accused/convict, “whereas”, recovery of contraband attributed to the accused/convict occurring from the conscious and exclusive possession of a person other than the convict. Though, in the aforesaid endeavor, the defence counsel while subjecting PW-2 to cross-examination, has put an affirmative suggestion to him wherein portrayals are held of ASI Lal Chand nabbing Dev Raj, also he has therein put affirmative suggestions’ to him that the aforesaid ASI taking both Dev Raj and the accused/convict to the police station, yet all the aforesaid affirmative suggestions put to PW-2 by the defence counsel while holding him to cross-examination, evinced a dis-affirmative reply from him. Dehors PW-2 denying the aforestated affirmative suggestions put to him by the learned defence counsel while holding him cross examination, nonetheless the couching of the aforesaid suggestions’ in an affirmative phraseology, bolsters an inference that thereupon the defence conceding to the validity of effectuation of recovery of Bhang from the conscious and exclusive possession of the accused “conspicuously also” when the learned defence counsel while subjecting PW-1 to cross-examination, has thereat put an affirmative suggestion to him in respect of the accused/convict imploring the Investigating Officer concerned, to make/frame vis-a-vis him a case similar to one in respect whereof one Dev Raj stood implicated. The effect of the accused/convict evidently imploring the Investigating Officer concerned to frame a case similar to the one, as stood framed against accused Dev Raj, also for reiteration is significatory of his admitting his guilt in respect of the charge. Besides the aforesaid acquiescence diminishes the worth of any espousal of the counsel for the accused/convict, of the Investigating Officer falsely implicating the accused/convict. Moreover, it also denudes the worth of submissions addressed before this Court, qua given the purported effectuation of recovery of Bhang from the conscious and exclusive possession “from” a place other than the one depicted in the apposite site plan, thereupon the entire proceedings reeking with a stench of viciations. Moreover, it also denudes the worth of submissions addressed before this Court, qua given the purported effectuation of recovery of Bhang from the conscious and exclusive possession “from” a place other than the one depicted in the apposite site plan, thereupon the entire proceedings reeking with a stench of viciations. In addition, even if a case vis-a-vis Dev Raj held any dissimilarity with the case framed against the accused/convict, nonetheless effect thereof fails to exculpate the guilt of the accused, emphatically when he for all the reasons aforestated acquiesces to the Investigating Officer concerned, validly effectuating recovery of Bhang from his conscious and exclusive possession. 14. The learned counsel for the accused/convict has also contended that with an admission occurring in the cross-examination of PW-1 in respect of 8 to 10 houses existing in close vicinity of the site of occurrence also his deposing therein that on his visiting one of the homesteads located in vicinity of the site of occurrence, his noticing only children being available thereat, whereafter he underscores in his testification of his not visiting other homesteads occurring in vicinity thereof, thereupon the prosecution case is rendered vulnerable to skepticism. However, even the aforesaid submission is merit less, as any non-association of independent witnesses in the relevant proceedings “cannot erode” the credible testifications’ of official witnesses “unless” potent evidence comprised in apposite suggestions being put to the prosecution witnesses “reveal” that the entire proceedings were concocted besides were a sham. However, a closest scanning of the testifications’ of each of the prosecution witnesses, reveal that despite theirs standing subjected to an ordeal of a rigorous cross-examination, none of the aforestated apposite suggestions’ stood put to them by the learned defence counsel nor any un-earthings emanated from them in respect of the entire proceedings drawn in memo Ext. PW1/C being either concocted or tainted besides being a sham. PW1/C being either concocted or tainted besides being a sham. Moreover, with this Court dispelling the vigour of the address made before this Court by the learned counsel for the appellant, of the prosecution case suffering enfeeblement, arising from the factum of effectuation of recovery of Bhang from the conscious and exclusive possession of the convict, occurring at a place other than the one reflected in the apposite site plan also with this Court hereinabove concluding that thereupon the prosecution case not suffering from any taint of any purported invention or concoction, thereupon an apt befitting sequel is generated that hereat non-association of independent witnesses despite their availability in proximity to the site of occurrence, hence not rendering the prosecution case to be construable to be a sham. In aftermath, with this Court, on anvil of suggestions’ put by the learned defence counsel while holding PW-2 to cross-examination wherein a display occurs in respect of the accused/convict acquiescing qua his imploring the Investigating Officer concerned, to frame a case similar to one which was framed against one Sh. Dev Raj, hereinabove concluding of the defence conceding, to, the factum of recovery of contraband being effectuated from the conscious and exclusive possession of the convict, thereupon also the effect, if any, of non-joining in the relevant proceedings, of independent witnesses, despite their availability in close vicinity of the site of occurrence, not eroding the vigor of the prosecution case. 15. Be that as it may, with this Court concluding that the case property weighing 340 grams at the time of its production in Court holding the apt connectivity vis-a-vis its recovery standing effectuated under the relevant memos, thereupon this Court is constrained to affirm the findings of conviction pronounced upon the accused/convict. 16. A wholesome analysis of evidence on record portrays that the appreciation of evidence as done by the learned trial Court does not suffer from any perversity and absurdity nor it can be said that the learned trial Court in recording findings of conviction has committed any legal misdemeanor, in as much, as, its mis-appreciating the evidence on record or its omitting to appreciate relevant and admissible evidence. In aftermath this Court does not deem it fit and appropriate to interfere with the findings of conviction recorded by the learned trial Court. 17. In aftermath this Court does not deem it fit and appropriate to interfere with the findings of conviction recorded by the learned trial Court. 17. In view of the above discussion, I find no merit in this appeal, which is accordingly dismissed and the judgment of the learned trial Court is maintained and affirmed. Record of the learned trial Court be sent back forthwith. The impugned judgment of conviction and sentence be forthwith put to execution. The Registry is directed to forthwith circulate copies of this judgment to all subordinate Courts.