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2018 DIGILAW 487 (HP)

Raju v. State of Himachal Pradesh

2018-03-28

TARLOK SINGH CHAUHAN, VIVEK SINGH THAKUR

body2018
JUDGMENT : Tarlok Singh Chauhan, J. The appellants were tried for offence punishable under Section 20 of the Narcotics Drugs and Psychotropic Substance Act, 1985 (for short the 'NDPS Act') and after trial have been convicted to undergo rigorous imprisonment for ten years alongwith fine of Rs.1,00,000/- (Rupees one lakh) each and in default of payment of fine to further undergo simple imprisonment for a further period of six months. 2. The parties do not dispute that the case as set-out by the prosecution has correctly been enumerated by the learned Special Judge, therefore, the same is extracted as such from the judgment. 3. Briefly stated, the facts of the case are that on 22.03.2015, as per rapat, Ex.PW3/A, a police team headed by H.C. Raj Pal (PW8) , left police station Bhunter for routine patrolling towards Jachhni side on Bhunter-Manikaran road, in an official vehicle No. HP34-9984. At about 2:30 a.m., the said police party was present at a place known as Jachhni, where one vehicle bearing No. PB-11AY-5823 came from Manikaran side. The said vehicle was signalled to stop. Vehicle was being driven by accused Hari Sharma and co accused Raju was sitting by the side of driver. On stopping, the vehicle was taken to one side of the road. PW-8 Raj Pal (I.O.) inquired their names and addressed, which they revealed to him. The documents of the vehicle were demanded by the I.O. from accused Hari Sharma, but he could not produce the same. Thereafter, checking of the vehicle was done. On checking, one black colour bag, which was slightly torn, having two strings and three pockets, was found kept on the lap of accused Raju. The bag was having inscription 'ONE POLAR' on it. It was night time and place was secluded. No local witness was present at the spot. Therefore, I.O. associated C. Vijay Kumar (PW-6) and LHC Manoj Negi as witnesses. In their presence, the search of the bag was conducted. On opening its zip, one envelope, made of khaki tape, was found inside. On checking the said packet, it was found containing black colour substance in the shape of Chapaties, wrapped in transparent polythene wrappers, which on the basis of smell and experience, was found to be cannabis (Charas). In their presence, the search of the bag was conducted. On opening its zip, one envelope, made of khaki tape, was found inside. On checking the said packet, it was found containing black colour substance in the shape of Chapaties, wrapped in transparent polythene wrappers, which on the basis of smell and experience, was found to be cannabis (Charas). Thereafter, middle zip of the bag was opened and one old insurance of the vehicle and one agreement as well as Aadhar Card of accused Hari Sharma were found. The Charas so recovered was weighed with the help of electronic scale. Its weight was found to be 1 kg 65 grams. The entire recovered Charas was again put in the same fashion and then the bag was sealed in a cloth parcel, Ex.P-1 which was sealed with nine seals of 'T'. Sample seal Ex.PW6/B was taken on a piece of cloth and seal after use was handed over to C. Vijay Kumar. I.O. filled NCB-I form in triplicate, one of which is Ex.PW7/E. The case property was taken into possession vide memo Ex.PW6/A, in the presence of witnesses, who also signed the memo. 4. Thereafter I.O. prepared rukka Ex.PW7/A and sent the same to the police station, Bhunter, through C. Vijay Kumar for the registration of the case on which FIR Ex.PW7/B was registered by SI Bhag Singh who on the registration of FIR, made endorsement Ex.PW7/C on the rukka and handed over the case file to C. Vijay Kumar with the direction to take the same to the Investigating Officer at the spot. Site plan Ex.PW8/A was also prepared by the Investigating Officer and statements of witnesses were recorded correctly as per their versions. The accused persons were apprised about the offence committed and grounds of their arrest and then arrested vide memos Ex.PW8/B and Ex.PW8/C, respectively. Their 'Jamatalashi' was conducted at the spot by the I.O. and qua this memos, Ex.PW8/D and Ex.PW8/E were also prepared. On the receipt of case file from the police station at 6:30 a.m. I.O. completed the 'Peshanies' on the documents. 5. On completion of the proceedings at the spot, accused persons alongwith case property and vehicle were brought to police station, Bhunter, where rapat Ex.PW3/B was made in this regard. On the receipt of case file from the police station at 6:30 a.m. I.O. completed the 'Peshanies' on the documents. 5. On completion of the proceedings at the spot, accused persons alongwith case property and vehicle were brought to police station, Bhunter, where rapat Ex.PW3/B was made in this regard. In the police station accused persons alongwith case property were produced before SI Bhag Singh (PW-7), who resealed the parcel of case property Ex.P-1 with three seals of 'K'. PW-7 also filled the relevant columns of NCB-I form, Ex.PW7/E and drew sample of seal 'K', which is Ex.PW7/D, entered Rapat Ex.PW3/C and prepared docket Ex.PW8/F, for sending the case property to FSL and thereafter, deposited the case property alongwith vehicle with MHC Gian Chand (PW9) of Police Station who made necessary entries in Register No. 19 against Sr. No. 140, the abstract of which is Ex.PW9/A. Investigating Officer on 23.03.2015, prepared Special Report Ex.PW2/A and submitted the same before Dy. S.P. (H. Qtrs.) , Sh. Sanjay Kumar Sharma, who after making endorsement, handed over the same to his Reader, H.C. Nirat Singh (PW-2) , who entered the same in the relevant register, the abstract of which is Ex.PW2/B. On 23.03.2015, after filling column no. 12 of NCB form Ex.PW7/E, MHC Gian Chand sent the case property to FSL, Junga, through docket, Ex.PW8/F, alongwith NB-I form, sample seals 'T' and 'K' and other relevant documents, through HHC Neel Chand (PW-1) vide RC No. 68 of 2015, Ex.PW1/A. Rapat Ex.PW3/D was recorded in this regard in the police station. PW-9 also issued CIPA certificate under Section 65-B of NDPS Act, which is Ex.PW9/B. HHC Neel Chand deposited the case property and obtained the receipt, which on return, was handed over to MHC and Rapat Ex.PW3/E was entered in the police station in this regard. 6. After completion of entire formalities, challan against the appellants was filed in the Court. Finding a prima facie case, appellants were charged for the offence punishable under Section 20 of the NDPS Act to which they pleaded not guilty and claimed trial. 7. The prosecution in order to prove the guilt of the appellants examined 9 witnesses. The statements of appellants under Section 313 Cr.P.C. were recorded in which they denied the case of the prosecution and claimed themselves to be innocent. However, no evidence in defence was adduced by the accused. 8. 7. The prosecution in order to prove the guilt of the appellants examined 9 witnesses. The statements of appellants under Section 313 Cr.P.C. were recorded in which they denied the case of the prosecution and claimed themselves to be innocent. However, no evidence in defence was adduced by the accused. 8. The learned Special Judge after recording the evidence and evaluating the same convicted the appellants as aforesaid. 9. Aggrieved by the judgment of conviction and sentence passed by the learned Special Judge, the appellants have filed the present appeals. 10. It is vehemently argued by Ms. Bhavana Datta, Legal-aid-Counsel and Mr. Dinesh Thakur, learned Advocate, that the findings of guilt recorded by the learned Special Judge are perverse inasmuch as it has failed to take into consideration the material contradictions, embellishment and improvement and the learned Court has further ignored the fact that no independent witness has been examined. It is also argued that even the seal used in this case had not been produced before the Court, therefore, on this ground alone the prosecution case ought to have been dismissed. Lastly, it is argued that there is no compliance of Section 50 of the NDPS Act. 11. On the other hand, learned Additional Advocate General supported the impugned judgment and would contend that the findings recorded by the learned Special Judge are strictly in accordance with law, therefore, deserve to be upheld. We have heard learned counsel for the parties and have gone through the records of the case. 12. As regards material contradictions, it is more than settled that while appreciating evidence, the Court has to take into consideration whether the contradictions/omissions are of such magnitude that they are materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements on trivial matters without effecting the core of the prosecution case cannot be made a ground to reject the evidence in its entirety. The trial Court after going through the entire evidence, must form an opinion about the credibility of the witnesses and the appellate Court in normal course of action, would not be justified in reviewing the same again without justifiable reasons. The trial Court after going through the entire evidence, must form an opinion about the credibility of the witnesses and the appellate Court in normal course of action, would not be justified in reviewing the same again without justifiable reasons. But the said provision where the omission(s) amount to a contradiction, creating a serious doubt about the truthfulness of a witness and other witness also make material improvements before the Court in order to make the evidence acceptable, it cannot be safe to rely upon such evidence. Even though the normal discrepancies are bound to be there due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition and would not render the evidence brittle. But it can be one of the factors to test the credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility. 13. Mere marginal variations in the statements cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited. 14. Bearing in mind the aforesaid parameters, we now proceed to consider and evaluate the material evidence on record so that we can come to the conclusion as to whether the findings recorded by the learned Court below are indeed perverse as alleged by the appellants or the same are based on correct appreciation of the evidence. 15. The material witnesses in this case are PW6 C. Vijay Kumar and PW8 Investigating Officer, HC Raj Pal. 16. As per PW6 C. Vijay Kumar, he alongwith HC Raj Pal (PW8), C. Anup Thakur and LHC Manoj Negi proceeded from police station in connection with NAKABANDI towards Jachhni. At about 2:30 a.m. when they were present at village Jachhni, one vehicle came from Manikaran side, which was signalled to stop. Two persons were found sitting in the vehicle and I.O. inquired about their names and addresses. Driver disclosed his name as Hari Sharma and occupant as Raju. This witness identified both the appellants in the Court. At about 2:30 a.m. when they were present at village Jachhni, one vehicle came from Manikaran side, which was signalled to stop. Two persons were found sitting in the vehicle and I.O. inquired about their names and addresses. Driver disclosed his name as Hari Sharma and occupant as Raju. This witness identified both the appellants in the Court. Further he stated that documents of the vehicle were demanded by the I.O, however, the driver could not produce the same. The person sitting in the vehicle by the side of the driver seat was holding one rucksack (pithu bag) on his lap. On checking the same one khakhi envelope was found containing black colour substance in the shape of chapaties and on the basis of experience and smell, it was found to be cannabis. Since the place was isolated, no witness was present. On weighing the substance, it was found to be 1 kg 65 grams. Thereafter sealing of the contraband was done by putting nine seals of 'T'. NCB-I form in triplicate was filled. Memo of recovery Ex.PW6/A was prepared. The sample seal was signed by both the accused and witnesses and he too had signed over the same. Ruka was scribed and sent to the police station. 17. Similar is the statement of PW8 HC Raj Pal, who also happens to be the Investigating Officer. Even though suggestion was given to this witness that the accused person had been taking their meal at dhaba at about 8:30 a.m. where an unclaimed bag was found in the dhaba near the place where they were sitting and thereafter, some people in plain clothes took them to police station, Bhunter and foisted a false case against them. But these suggestions have been vehemently denied by both the witnesses. Recovery from the possession of Raju stands duly proved on record and as regards the co appellant Hari Sharma, he was having the knowledge of the contraband not only because he was travelling alongwith Raju in the said vehicle but, in fact, the vehicle was being driven by him. That apart, Aadhar Card alongwith agreement pertaining to the vehicle and insurance was also recovered from the bag which contained the contraband. 18. That apart, Aadhar Card alongwith agreement pertaining to the vehicle and insurance was also recovered from the bag which contained the contraband. 18. It is vehemently urged by the learned counsel for the appellants that there are certain serious contradictions in the statement of the witnesses, however, no serious contradictions which may go to the root of the case could be pointed out by them. 19. It is next contended by the learned counsel for the appellants that no independent witness has been examined in this case. However, a perusal of the record would show that it has been duly established on record that the recovery was effected at an isolated place at 2:30 a.m., therefore, in the given facts and circumstances of the case, non-association of independent witness cannot be taken to be fatal to the prosecution case. Even as per the suggestions of the appellants, there was a petrol pump and hospital at Hathithan, which remain open throughout night, but the same are situated at a distance of 2 kilometer. There is no other evidence available on record to even remotely suggest that there was any mala fide intent on the part of the investigating team in not associating independent witness. Even otherwise mere non-association of independent witness in the given facts and circumstances of the case cannot be said to be fatal to the prosecution case. After all the prosecution cannot be asked to perform the impossible once it is proved that there was no independent witness available at the relevant time, then obviously the I.O. had no option but to associate officials accompanying him in the search process. 20. That apart, the appellants can be ordered to be convicted solely on the basis of the testimonies of the official witnesses whose credibility has to be tested on the touchstone of trustworthiness. Therefore, wherever evidence of police officials after careful scrutiny inspires confidence and it is found to be trustworthy and reliable, it can form basis of conviction and no infirmity attaches to their testimony merely they belong to the police. Moreover, there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence, such reliable and trustworthy statement can form the basis of conviction. Moreover, there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence, such reliable and trustworthy statement can form the basis of conviction. (Refer: Aher Raja Khima vs. State of Saurashtra, (1956) AIR(SC) 217, Tahir vs. State (Delhi), (1996) 3 SCC 338 , Girija Prasad (dead by Lrs) vs. State of Madhya Pradesh, (2007) 7 SCC 625 , Tika Ram vs. State of Madhya Pradesh, (2007) 15 SCC 760, Govinda Raju alias Govinda vs. State of Sriramapuram Police Station and another, (2012) 4 SCC 722 ) . 21. There is nothing on record to suggest or even remotely doubt the testimony of the police officials whose statements otherwise cannot be rejected solely on the ground that the witnesses happen to be the police officials and were the members of the raiding party. (Refer: Sama Alana Abdulla vs. State of Gujarat, (1996) 1 SCC 427) . 22. It is thereafter vehemently argued by the learned counsel for the appellants that the case of the prosecution deserves rejection outrightly as the seals that are alleged to have been used in this case have admittedly not been produced. 23. At the outset, it may be observed that the purpose of producing the seal in the Court is only to ensure that the case property remains intact and the mere non production is not always fatal to the prosecution case, more particularly, in the facts of the present case, where the police official or police supported the case with regard to the case property having been sealed by them at the spot as also the police station. 24. A Co-ordinate Bench judgment of this Court in Sohan Lal vs. State of H.P., (2016) 6 ILR(HP) 274, while dealing with the question of non-production of original seal in the Court, observed as under: "52. Non-Production of original seal in the Court also cannot be said to be fatal, for the police officials have fully established their case of having sealed the case property, both on the spot and at the Police Station. There is no discrepancy about the number and nature of the seals. Also, there is no iota of evidence that they were either broken or tampered with. Report of the FSL (Ex.PW-13/C) is also evidently clear to such effect. 53. There is no discrepancy about the number and nature of the seals. Also, there is no iota of evidence that they were either broken or tampered with. Report of the FSL (Ex.PW-13/C) is also evidently clear to such effect. 53. On this issue much reliance is placed on a decision rendered us in Kurban Khan and Anil Kumar, wherein it is held that non-production of original seals does render the prosecution case to be fatal. As authors of the said decisions, we ourselves clarify them to have been rendered in the given facts and circumstances, which fact, also subsequently stands clarified by another Coordinate Bench of this Court, by relying upon a judgment rendered by the apex Court in State represented by Inspector of Police, Chennai v. N.S. Gnaneswaran, (2013) 3 SCC 594 , in Kishori Lal (Criminal Appeal No.201 of 2016), that the said decisions were rendered in the given facts and circumstances. Not only that, they further clarified that it was incumbent upon the accused to have established prejudice caused to him on account of non-production of the original seal(s) in the Court, particularly when otherwise there was sufficient evidence, linking the seal affixed on the sample and embossed on the documents to be the same and the case property to be the one so recovered from the conscious possession of the accused. The Court observed that "availability of other sufficient evidence renders non production of originals seal as a technical defect, which does not vitiate trial unless prejudice is caused". "Purpose of production of original seal in the Court is to compare it with seal affixed on parcels of contraband and sample in the Court so as to prove that the parcels produced in the Court are the same which were prepared and sealed on the spot at the time of recovery from the accused and also to ensure that parcel sent for chemical examination and received back were the same which were seized and sealed on the spot." 25. Further, it would be noticed that the prosecution has been able to establish the movement of the case property from the time of its seizure till it reached the laboratory at Junga wherein it was deposited. Further, it would be noticed that the prosecution has been able to establish the movement of the case property from the time of its seizure till it reached the laboratory at Junga wherein it was deposited. As per the report of the FSL Ex.PX, the case property was received through HHC Neel Chand No. 251 and contained in one sealed cloth parcel bearing nine seals of 'T' & three seals of 'K'. The seals were found intact and tallied with specimen seals sent by the forwarding authority and seals impressions impressed on the form NCB-I and it was kept in safe custody of Assistant Chemical Examiner and the case property thereafter sent back to the police station as finds mention in the NCB Form-I, which also bears the necessary endorsement by the Assistant Chemical Examiner even at the time when the case property was produced before the Court at the time of trial, it bore 9 seal impressions of seal 'T' and three seals of 'K' as also five seals of FSL, were found intact. 26. It is then vehemently argued by the appellants that since there is no compliance of Section 50 of the NDPS Act, therefore, the appellants are entitled to be acquitted of the offence. Strong reliance in support of this plea is placed upon the judgment of Hon'ble Supreme Court in State of Rajasthan vs. Parmanand and another, (2014) 5 SCC 345 . In order to appreciate this submission, it would be necessary to refer to the bare provisions of Section 50 of the NDPS Act, which reads thus:- "50. Conditions under which search of persons shall be conducted.- (1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest gazetted officer of any of the departments mentioned in Section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the gazetted officer or the Magistrate referred to in sub-section (1). (3) The gazetted officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (3) The gazetted officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. (5) When an officer duly authorised under Section 42 has reason to believe that it is not possible to take the person to be searched to the nearest gazetted officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest gazetted officer or Magistrate, proceed to search the person as provided under Section 100 of the Code of Criminal Procedure, 1973 (2 of 1974) . (6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior." 27. As per the prosecution case, since, the alleged contraband was recovered from the bag which the accused Raju was having on his lap, therefore, the procedure laid down under Section 50 of the Act was not required to be followed. However, the learned counsel for the appellant would vehemently argue that the appellants were, in fact, searched and it is clearly established from the memos Ext. PW8/D and Ext. PW8/E. 28. We have gone through both these memos and find that both these memos are of jamatalashi i.e. physical search carried out after the five minutes of formal arrest of both the accused and, therefore, in no manner, these can be equated with the search contemplated under Section 50 of the NDPS Act. 29. As regards the judgment of Hon'ble Supreme Court in Parmanand's case supra, it would be noticed that after the recovery of the contraband from the bag of the accused, the investigating team had some doubt that the accused were still carrying charas and accordingly their personal search was conducted and it was in this background the Hon'ble Supreme Court observed as under: "15. Thus, if merely a bag carried by a person is searched without there being any search of his person, Section 50 of the NDPS Act will have no application. Thus, if merely a bag carried by a person is searched without there being any search of his person, Section 50 of the NDPS Act will have no application. But if the bag carried by him is searched and his person is also searched, Section 50 of the NDPS Act will have application. The aforesaid observations cannot be read in isolation. 30. This Court in State of Himachal Pradesh vs. Rakesh, 2018 LatestHLJ 214 (HP) has considered the provisions of Section 50 of the NDPS Act as also the judgment of Hon'ble Supreme Court in Parmanand's case and has observed as under:- "17. In the present case the personal search of the accused persons was carried out after alleged recovery of contraband from a bag, alleged to be of the accused persons. If the personal search is to be carried out without there being any suspicion of narcotics, perhaps Section 50 of the ND&PS Act will not apply, but in the present case nothing has come on record that when the personal search of the accused persons was carried out, the Investigating Officer was not having any suspicion that something will be recovered after conducting the personal search of the accused persons. In fact, it has come in the statements of prosecution witnesses that prior to the search of the bag of the accused persons personal search of the accused persons was also conducted by the Investigating Officer and this fact is further fortified by PW-4, ASI Mahant Ram Sharma, who has specifically deposed that personal search of the accused persons was conducted in the bus by Head Constable Chaman Lal, so under these circumstances the law, which is extracted hereunder, as laid down by the Hon'ble Supreme Court and by this Court and has been relied upon by the learned counsel for respondent No. 1, is applicable: 1. State of Rajasthan vs. Parmanand & another, (2014) 5 SCC 345 ; & 2. State of Himachal Pradesh vs. Desh Raj & another, 2016 Supp HLR 3088 (DB). 31. State of Rajasthan vs. Parmanand & another, (2014) 5 SCC 345 ; & 2. State of Himachal Pradesh vs. Desh Raj & another, 2016 Supp HLR 3088 (DB). 31. Adverting to the facts of the present case, it would be noticed that the so called personal search (Jamatalashi) was carried out vide memos Ext.PW8/D and Ext.PW8/E after the appellants had actually been arrested and there was no suspicion in the mind of the Investigating Officer that something will be recovered after conducting the personal search of the appellants, therefore, the judgment relied upon by the learned counsel for the appellants is of no assistance to them. 32. In view of the aforesaid discussion, we find no merit in these appeals and the same are accordingly dismissed.