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2018 DIGILAW 1159 (HP)

Mohar Singh v. State of H. P.

2018-06-26

DHARAM CHAND CHAUDHARY, VIVEK SINGH THAKUR

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JUDGMENT : Dharam Chand Chaudhary, J. Appellant (hereinafter referred to as the ‘accused’) herein is a convict. He has been tried for the commission of an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘NDPS Act’ in short) with the allegations that when on suspicion his search was conducted on 19.11.2015 around 11.40 p.m. near parking of Samiti Guest House, Anni, District Kullu, charas weighing 1.700 Kg. was recovered from his exclusive and conscious possession. On finding the charge framed against him proved in view of the evidence produced during the course of trial, he has been convicted and sentenced to undergo rigorous imprisonment for 10 years and to pay Rs.1,00,000/- as fine vide impugned judgment dated 19.06.2017 passed by learned Special Judge, Kinnaur at Rampur Bushehar in Sessions Trial No.4-R/3 of 2014/16. 2. On 19.11.2015, PW-6 Inspector/SHO Santosh Kumar accompanied by other police officials namely, HHC Chande Ram, Constable Vipin Kumar and HC Mohan Joshi was on routine patrol in Anni bazar. Rapat Ext. P-Y was entered in daily diary in this regard. Around 10.40 p.m. when police party reached near Samiti Guest House parking, Anni, accused was spotted coming from Naldehra side towards Anni. On noticing the police party, he turned behind and tried to flee away towards Naldehra. On suspicion, he was apprehended and when asked to disclose his antecedents, he disclosed his name as Mohar Singh. It appears to the I.O. PW-6 that accused had concealed something in left side of blue coloured jacket of ‘Puma’ brand, he had worn at that time. On such suspicion having arisen, PW-6 the IO deputed Constable Vipin Kumar and HC Mohan Joshi in search of independent witnesses. They came back alone within 15-20 minutes, as no-one was available nearby being dead hours of the night. PW-6 had thus associated HHC Chande Ram and PW-4 Mohan Joshi to witness the search and seizure. It is in their presence, the accused was apprised about his legal right of being searched before a Magistrate or a Gazetted Officer vide memo Ext. PW-4/A. He, however, opted for his search by the police party present there. The I.O. and other members of the police party first gave their personal search to the accused vide memo Ext. PW-4/B, however, nothing incriminating could be recovered from them. PW-4/A. He, however, opted for his search by the police party present there. The I.O. and other members of the police party first gave their personal search to the accused vide memo Ext. PW-4/B, however, nothing incriminating could be recovered from them. It is thereafter the I.O. PW-6 has conducted the search of the accused and recovered a white coloured carry bag (Ext. P-A1) allegedly concealed beneath the jacket in left side of his body, on which ‘V2 KART’ was written. On opening the knot of the bag, black coloured substance Ext. P-A2 in the shape of ball was found kept therein. The I.O. PW-6 on the basis of his experience found the recovered substance to be charas. The same was weighed and found 1.700 Kg. The contraband along with carry bag was put into a parcel of cloth and sealed with six seals of impression ‘T’. The specimen of seal impression ‘T’ was obtained on a piece of cloth, which is Ext. PW-4/D. The relevant columns of NCB forms Ext. PW-5/C were filled in and the impression of seal ‘T’ also drawn thereon. The seal after its use was handed over to PW-4 HC Mohan Joshi. The recovered charas along with NCB forms was taken into possession vide memo Ext. PW-4/B. It is thereafter the rukka Ext. PW1/A reduced into writing and sent to police station, Anni through PW-4 HC Mohan Joshi. On the basis of rukka, FIR Ext. PW-1/B came to be registered in the police station. The I.O. also prepared the spot map Ext. PW-6/A and clicked the photographs Ext. PW-6/B-1 to Ext. PW-6/B-3. The accused was arrested and grounds of arrest disclosed to him vide memo Ext. PW-6/B. The statements of witnesses were recorded as per their version. PW-4 who had gone to police station along with rukka also returned to the spot in the meanwhile and handed over the case file to the I.O PW-6. 3. On completion of investigation on the spot, PW-6 handed over the case property along with seal and NCB forms to PW-5 Bal Krishan, the then MHC Police Station, Anni. PW-5 has filled in the relevant columns of NCB forms Ext. PW-5/C and the case property was handed over to PW-2 HHC Santosh Kumar with a direction to deposit the same in the State Forensic Science Laboratory, Junga vide RC No. 34/15. PW-5 has filled in the relevant columns of NCB forms Ext. PW-5/C and the case property was handed over to PW-2 HHC Santosh Kumar with a direction to deposit the same in the State Forensic Science Laboratory, Junga vide RC No. 34/15. PW-5 accordingly deposited the case property in safe condition in the laboratory and returned the receipt over the copy of RC Ext. PW-5/B to malkhana Incharge in the police station. 4. On 22.11.2015, PW-6 has prepared the special report Ext. PW-3/A and the same was handed over to SDPO, Anni. The report Ext. P-X was received from the laboratory in police station. 5. On completion of investigation, PW-6 has prepared the challan and presented in the Court of learned Special Judge, Kinnaur Sessions Division, Rampur Bushehar with a prayer to try, convict and sentence the accused for the commission of offence punishable under Section 20 of the NDPS Act. 6. Learned Special Judge on consideration of challan and documents annexed thereto as well as hearing learned Public Prosecutor and learned defence counsel and finding prima-facie case having been made out against the accused has framed the charge under Section 20 of the NDPS Act against the accused. He, however, pleaded not guilty and claimed trial. 7. The prosecution in order to sustain the charge against the accused has examined six witnesses in all. The material prosecution witnesses are PW-4 ASI Mohan Joshi and I.O. PW-6 Inspector Santosh Kumar. The remaining prosecution witnesses are formal as PW-1 Mohan Singh had registered the FIR, whereas, PW-2 Santosh Kumar had taken the case property to the laboratory. PW-3 LHC Bhuvneshwari, the then Reader to SDPO, Anni has proved the special report Ext. PW-3/A and the entries in the dispatch register Ext. PW-3/B. PW-5 HC Bal Krishan was posted as MHC police station, Anni at the relevant time. He has proved the prosecution case qua deposit of case property along with sample seal and NCB forms in the malkhana register by PW-6. The entries Ext. PW-5/A qua it was made in the malkhana register. He has also proved the case property sent to laboratory vide RC No. 134/15 and the entries in column No. 12 of the NCB form Ext. PW5/C, he made in his hand. The entries Ext. PW-5/A qua it was made in the malkhana register. He has also proved the case property sent to laboratory vide RC No. 134/15 and the entries in column No. 12 of the NCB form Ext. PW5/C, he made in his hand. On the other hand, the accused in his statement recorded under Section 313 Cr.P.C has denied the entire prosecution case being incorrect and in his defence pleaded that he has been implicated in this case falsely on account of his enemity with one Shadi Lal. He has also examined Davinder Verma, Nodal Officer, Bharti Air Tel Kasumpati, Shimla, who, however, could not produce the summoned record being already destroyed. DW-1 Keshav Ram was working as Chowkidar in the office of B.D.O. Anni, who has been examined to show that being on night duty, he was present in the office situated at a distance of 15-20 feet therefrom. 8. Learned trial Court on appreciation of the oral as well as documentary evidence available on record has arrived at a conclusion that the allegations against the accused stand proved beyond all reasonable doubt, hence convicted him. He was also sentenced as pointed out at the out set. 9. The legality and validity of the impugned judgment has been questioned on the grounds inter-alia that learned trial Court has gravely erred while recording the findings of conviction against the accused in the absence of independent witnesses. The official witnesses examined by the prosecution were neither dependable nor reliable and rather interested in the success of the prosecution case being police officials. Their testimony otherwise is also highly contradictory and inconsistent. The non-joining of independent witnesses, that too, when the place of recovery is Anni bazar, a thickly populated area has rendered the prosecution story highly doubtful. The testimony of DW-1, Chowkidar in the office of B.D.O. Anni has erroneously been discarded. The factum of one Shadi Lal was inimical to the accused and it is at his instance, the case planted on him has also erroneously been ignored. Therefore, the impugned judgment which allegedly has not been passed on proper appreciation of the evidence is stated to be not legally sustainable, hence sought to be quashed and set aside. 10. Mr. The factum of one Shadi Lal was inimical to the accused and it is at his instance, the case planted on him has also erroneously been ignored. Therefore, the impugned judgment which allegedly has not been passed on proper appreciation of the evidence is stated to be not legally sustainable, hence sought to be quashed and set aside. 10. Mr. Y.P.S. Dhaulta, learned counsel representing the appellant-convict while drawing the attention of this Court to the evidence available on record and also that the I.O. has not joined the independent witnesses intentionally and deliberately contended that the prosecution has miserably failed to prove its case against the accused beyond all reasonable doubt. The delay as occurred in sending the case property to Forensic Science Laboratory has allegedly vitiated the proceedings in the trial. The charas as per prosecution story was in the shape of balls, whereas, according to PW-6 in the shape of sticks. The possibility of tampering of the case property, therefore, according to learned counsel, cannot be ruled-out. 11. On the other hand, Mr. Narinder Guleria, learned Additional Advocate General while repelling the arguments addressed on behalf of the appellant-convict has pointed out from the statements of the material prosecution witnesses PW-4 and PW-6 that their version is consistent and worthy of credence. Merely that they are official witnesses, their testimony, which otherwise is consistent and without any contradiction has rightly been relied upon by learned trial Court. Therefore, the impugned judgment, which according to learned Additional Advocate General, is well reasoned calls for no interference in this appeal. 12. Considering the rival submissions made on both sides, following points arise for determination in the present appeal : (i) Is, the present a case where irrespective of the place of search and seizure, being Anni Bazar comprising various residential houses/government offices, the independent witnesses were not associated by the IO deliberately and intentionally. (ii) Is, the evidence as has come on record by way of testimony of official witnesses i.e. PW-4 ASI Mohan Joshi and PW-6 Insp. Santosh Kumar not worth credence. (iii) Whether the inconsistencies, contradictions and other procedural irregularities in the prosecution evidence render the prosecution story qua recovery of the contraband, allegedly charas, from the conscious and exclusive possession of the accused, doubtful. Points No. 1 & 2. 13. Santosh Kumar not worth credence. (iii) Whether the inconsistencies, contradictions and other procedural irregularities in the prosecution evidence render the prosecution story qua recovery of the contraband, allegedly charas, from the conscious and exclusive possession of the accused, doubtful. Points No. 1 & 2. 13. It is well settled at this stage that joining the independent persons to witness the search and seizure is in the interest of fair trial, however, one should not lose sight of the fact that independent persons are not available at all places and every time for being associated as witnesses by the investigating agency and that the testimony of official witnesses, if on close scrutiny inspires confidence, should be relied upon to bring guilt home to the accused. It is held so by a Division Bench of this Court in Criminal Appeal No.165 of 2011 titled State of H.P. vs. Balkrishan, decided on 27th February, 2017, while placing reliance on the judgment of the Apex Court in Makhan Singh V. State of Haryana, (2015) 12 SCC 247 . The relevant extract of the same reads as follows : “……In peculiar circumstances of the case, it may not be possible to find out independent witnesses at all places and at all times. Independent witnesses who live in the same village or nearby villages of the accused are at times afraid of to come and depose in favour of the prosecution. Though it is well settled that a conviction can be based solely on the testimony of official witnesses, condition precedent is that the evidence of such official witnesses must inspire confidence. In the present case, it is not as if independent witnesses were not available…..” 14. The Apex Court has also held in Girija Prasad vs. State of M.P., (2007) 7 SCC 625 that the testimony of official witnesses is as much good as that of independent person, however, close scrutiny of such statement is required and the same needs examination with all circumspection and caution. 15. Now, if coming to the evidence available on record, no doubt the parking of Samiti Guest House, Anni is situated in the main market. There cannot also be any dispute qua the locality is thickly populated. No one has been associated as independent witness by the police in this case. 15. Now, if coming to the evidence available on record, no doubt the parking of Samiti Guest House, Anni is situated in the main market. There cannot also be any dispute qua the locality is thickly populated. No one has been associated as independent witness by the police in this case. The question, however, arises as to whether any person was available in the market for being associated as independent witness at the relevant time and that the I.O. did not associate such person to witness the search and seizure deliberately and intentionally. The answer to this poser in all fairness and in the ends of justice would be in negative for the reason that Anni is a small town, of course, headquarter of a Sub Division. This town is situated in the interior of District Kullu and the terrain is hilly. 16. Now, if coming to the time of recovery which stands proved from the rapat rojnamcha Ext. PW-5/A, it was dead hours being 10:40 PM and it was month of November. Usually, in November, there remains chill in that area, therefore, it cannot be believed by any stretch of imagination that the local residents were available for being associated as witnesses, however, I.O. failed to do so intentionally and deliberately. On the other hand, PW-4 ASI Mohan Joshi has categorically stated that he along with Const. Vipan Kumar was deputed to search out someone in the bazaar. They, however, returned alone and apprized the I.O. PW-6 SHO Santosh Kumar that no one was available in the market and the other people were sleeping at that time. In view of the time i.e. 10:40 PM and month of November, i.e. winter season, there is no reason to disbelieve the testimony of PW-4 ASI Mohan Joshi that despite efforts made, no one could be traced out in the bazaar and rather people were sleeping at that time. Merely that the area is thickly populated, is alone not sufficient to arrive at a conclusion that local residents were available for being associated as independent witnesses, however, the I.O. failed to do so intentionally and deliberately. 17. The photographs Ext. DY pressed into service on behalf of the accused, the same has been taken during day time and as such does not depict actual and factual position of night time. Learned trial Court has, therefore, rightly declined to place reliance thereon. 17. The photographs Ext. DY pressed into service on behalf of the accused, the same has been taken during day time and as such does not depict actual and factual position of night time. Learned trial Court has, therefore, rightly declined to place reliance thereon. DW-1 Keshav Ram Chowkidar in the office of BDO, Anni though has stated that being on night duty, he was available in the Samiti Guest House, however, he has nowhere stated that while the search of the accused was being conducted by the police, he was present on the spot and the police did not associate him deliberately and intentionally. Otherwise also, the availability of someone inside the Samiti Guest House makes no difference because being dead hours, the police officials deputed to trace out the independent witnesses have rightly chosen not to knock the door of any house, may be the Guest house. 18. The present is a case of chance recovery. Irrespective of it, the IO had made efforts to join independent witnesses. It was not expected either from him or the police officials accompanying him to have knocked the doors of the houses during night hours to associate the independent witnesses. Therefore, he having not left with any alternative has rightly associated PW-4 ASI Mohan Joshi and HHC Chande Ram as witnesses to witness the search and seizure. 19. Now, if coming to the controversy that the evidence as has come on record by way of testimony of PW-4 ASI Mohan Joshi and PW-6 Inspector Santosh Kumar is worthy of credence or not, it would not be improper to conclude that they both have supported the manner in which the search and seizure has taken place on the spot. Their statements find corroboration from seizure memo Ext. PW-4/B and the rukka Ext. PW-1/A. They were subjected to lengthy cross-examination on behalf of the accused but nothing material lending support to the defence could be elicited therefrom. 20. The only contradiction that as per the testimony of PW-4 ASI Mohan Joshi the recovered charas was in the shape of balls and sticks whereas as per that of PW-6 Insp. PW-1/A. They were subjected to lengthy cross-examination on behalf of the accused but nothing material lending support to the defence could be elicited therefrom. 20. The only contradiction that as per the testimony of PW-4 ASI Mohan Joshi the recovered charas was in the shape of balls and sticks whereas as per that of PW-6 Insp. Santosh Kumar, in the shape of balls is not of such a nature to render the prosecution story doubtful for the reason that as per the prosecution case the recovered charas was in the shape of balls and both witnesses have stated so while in the witness box. PW-6 Insp. Santosh Kumar has added word “sticks” also while in the witness-box, does not render search and seizure doubtful. No other and further contradiction was pointed out during the course of arguments. On the other hand, a close scrutiny of the statements of PW-4 ASI Mohan Joshi and PW-6 Insp. Santosh Kumar lead to the only conclusion that the same are cogent and trustworthy. Minor contradiction does not go to the roots of the prosecution case. The present, as such, is a case where the ratio of the judgment of the Apex Court in Makhan Singh’s case and Girija Prashad case (supra) is squarely applicable and as such the testimony of the official witnesses which in the opinion of this Court is consistent and not contrary in nature has rightly been relied upon by learned trial Court while holding the accused guilty. It cannot also be said that the IO PW-6 Insp. Santosh Kumar had avoided to associate independent persons as witnesses intentionally and deliberately to implicate the accused in the case in hand falsely. 21. On the other hand, the present is a case of recovery of huge quantity of charas i.e. 1.700 kgs, it cannot be believed by any stretch of imagination that the same has been planted by the police to implicate the accused. The accused has failed to explain as to what he was doing at Anni bazaar during odd hours, had he not been carrying charas with him. Point No. 3. 22. As pointed out in para supra, the inconsistencies and contradictions in the prosecution evidence are not of such a nature to render the prosecution story doubtful. Now, if coming to the procedural irregularities and other inconsistencies, no doubt seal used by the IO PW-6 Insp. Point No. 3. 22. As pointed out in para supra, the inconsistencies and contradictions in the prosecution evidence are not of such a nature to render the prosecution story doubtful. Now, if coming to the procedural irregularities and other inconsistencies, no doubt seal used by the IO PW-6 Insp. Santosh Kumar was handed over to ASI Mohan Joshi, one of the members of raiding party. Said Mohan Joshi has not been examined and as such, the seal could not be produced. However, PW-6 Insp. Santosh Kumar has not been examined to show as to what prejudice has been caused to the accused due to non-production of the seal. It is held by this Court in Criminal appeal No.305/2014 titled Sohan Lal Vs. State of H.P. decided on 02.11.2016 that failure on the part of the defence to show any prejudice caused to the accused on failure to produce the seal does not falsify prosecution story that too when the recovery of the contraband stood proved with the help of other evidence cogent and reliable. 23. Now, if coming to the so called delay, allegedly occurred in forwarding the recovered charas to Forensic Science Laboratory for analysis, again the plea raised by the defence in this regard is without any substance for the reason that the case property deposited with PW-5 HC Bal Krishan in the malkhana was duly entered in the relevant register and it was handed over to PW-2 HHC Santosh Kumar vide RC No. 134/2015 dated 22.11.2015 to deposit the same in the Forensic Science Laboratory at Junga. The recovery having been made during the night intervening 19/20-11-2015 and the case property deposited on 20.11.2015 in the police malkhana having been sent on 22.11.2015 after a day of the deposit thereof, it cannot be believed by any stretch of imagination that there is any delay in sending the same to the laboratory. PW-2 HHC Santosh Kumar tells us that he had deposited the parcel containing the case property, NCB-I form in triplicate and sample seals on 22.11.2015 in the Forensic Science Laboratory, which while in the transit was not allowed to be tampered by him and remained in his safe custody. 24. It has also been argued that dispatch number of special report in this case entered in the register at Sr. 24. It has also been argued that dispatch number of special report in this case entered in the register at Sr. No. 369 has not been given whereas as per the testimony of PW-3 LHC Bhuvenashwari, in her cross-examination, dispatch numbers used to be mentioned against each and every entry in this register. However, if it is believed to be so, again no prejudice is shown to have been caused to the accused. The provisions under Section 57 of the Act qua forwarding of special report to the superior police officer are not mandatory but directory in nature, hence does not render the prosecution case doubtful, particularly when recovery of charas from the accused is established satisfactorily. Therefore, present is neither a case where on account of so called contradictions and inconsistencies, the prosecution case is not proved nor there exist any procedural irregularity of such a nature which render the same doubtful. 25. On the other hand, the link evidence is satisfactorily proved because the rapat Ext. PYX reveals that police party headed by PW-6 Insp. Santosh Kumar was on patrol duty in Anni bazaar. The rukka and seizure memo Exts. PW-1/A and PW-4/F, respectively reveal that the charas was recovered from the conscious and exclusive possession of the accused. The same was duly sealed and when brought to the police station, it was handed over to PW-5 HC Bal Krishan for safe custody in the malkhana. The same was thereafter sent to Forensic Science Laboratory Junga for chemical analysis. The same was found to be Charas. The report to this effect is Ext. PX. 26. In view of the above, the prosecution has satisfactorily proved that charas weighing 1.700 kgs. has been recovered from the exclusive and conscious possession of the accused and thereby shifted the burden to prove otherwise upon him. The present, therefore, is a case where presumption as envisaged under Sections 35 and 54 of the Act has to be drawn against the accused. Since he has failed to prove his innocence, therefore, it would not be improper to conclude that the charas weighing 1.700 kgs. has been recovered from his conscious and exclusive possession. 27. The present, therefore, is a case where presumption as envisaged under Sections 35 and 54 of the Act has to be drawn against the accused. Since he has failed to prove his innocence, therefore, it would not be improper to conclude that the charas weighing 1.700 kgs. has been recovered from his conscious and exclusive possession. 27. The evidence in defence the accused examined is hardly of any help to his case for the reason that DW Keshav Ram has not stated that he was present on the spot or on duty outside the Samiti Guest House and was not associated by the police to witness search and seizure. Merely that he was on night duty being Chowkidar is not sufficient to arrive at a conclusion that he was available for being associated as a witness. On the other hand, the two police officials deputed by the I.O. in the search of the independent witnesses have rightly opted for not knocking the doors of the houses and for that matter, the other government buildings also situated there. 28. Now, if coming to the statement of the accused recorded under Section 313 Cr.P.C., he has denied the entire prosecution case being incorrect, however, while answering question No. 29, admitted that he was called to police station and arrested there. Since as per arrest memo Ext. PW-4/A, he has been arrested during the night intervening 19/20-11-2015 itself and as he belongs to village Buchehar in Anni Tehsil District Kullu, he failed to explain as to what he was doing at Anni bazaar during odd hours and what was the time when he was called to the police station. Therefore, there is no grain of truth in the plea the accused raised in his defence. 29. For all the reasons hereinabove, this appeal fails and the same is accordingly dismissed. Consequently, the impugned judgment is upheld.