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Himachal Pradesh High Court · body

2018 DIGILAW 555 (HP)

Raj Kumar v. State of H. P.

2018-04-05

SURESHWAR THAKUR

body2018
JUDGMENT : Sureshwar Thakur, J. 1. The instant appeal stands directed, against, the impugned judgment, of 9.2.2015 rendered by the learned Special Judge (1) Una, H.P. in sessions trial No. 2/2014, whereby, he convicted the appellant (hereinafter referred to as “accused”) for his committing an offence punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “NDPS Act”). 2. Brief facts of the case are that on 14.11.2014 a police party consisting of SI Gaurav Bhardwaj, HC Naresh Kumar, LHC Bodh Raj, C. Kamal Kishan and C. Balwinder, had gone towards Ajouli and Dhada side for patrolling and traffic checking vide rapat No. 14 Ext. PW-2/A. Around 3.20 P.M. the police party was conducting traffic checking near abandoned tube well on Ajouli-Dhaba link road and had stooped up Pardhan Mohinder Mohan (PW-10) for checking of documents of his motorcycle No. HP-20D-7971. In the meanwhile, accused was seen riding white coloured Bajaj Chetak Scooter No. PB-08AA-1341 without helmet from Ajouli side proceeding Dhada link road. On seeing the police party, accused got perplexed and made abortive attempt to run away but was nabbed by the police at a distance of about 20 feet from the place where nakka was held. On being questioned, he disclosed his name to be Raj Kumar. On asking the reasons by SI Gaurav Bhadwaj for kicking out bag from his scooter the accused could not give satisfactory answer to his query, upon which PW-11 picked up the bag and checked the same in presence of aforesaid Mohinder Mohan. On opening red coloured bag on which words inscribed “SPORT” the police found eight blue coloured and four green coloured polythene packets duly stapled. PW-11 SI Gaurav Bhardwaj opened those packets one by one and found poppy husk in all the packets. On weighing one packet was of 990 grams, another of 920 grams, third of 910 grams, five packets of 900 grams each while two packets of 890 grams each, one packet of 880 grams and one more of 620 grams. Total weight of poppy husk in all the 12 packets was found to be 10 kg 600 grams. On weighing one packet was of 990 grams, another of 920 grams, third of 910 grams, five packets of 900 grams each while two packets of 890 grams each, one packet of 880 grams and one more of 620 grams. Total weight of poppy husk in all the 12 packets was found to be 10 kg 600 grams. After completing all codal formalities and on conclusion of the investigation into the offence, allegedly committed by the accused, challan was prepared and filed in the Court of learned Special Judge, Una on 30.12.2013 and was received by way of assigned in the trial Court. 3. The accused stood charged by the learned trial Court for his committing an offence punishable under Section 15 of NDPS Act, to which he pleaded not guilty and claimed trial. 4. In order to prove its case, the prosecution examined 11 witnesses. On closure of prosecution evidence, the statement of the accused under Section 313 of the Code of Criminal Procedure was recorded, wherein, he pleaded innocence and, claimed false implication. He chose not to lead any defence evidence. 5. On an appraisal of the evidence on record, the learned trial Court returned findings of conviction against the accused, for his committing an offence punishable under Section 15 of NDPS 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 of evidence on record rather theirs standing se-quelled by gross misappreciation, by it, of the relevant 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 standing 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 rather, standing, based on a mature and balanced appreciation of evidence on record, and, theirs not necessitating interference rather theirs 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. The Investigating Officer concerned, through, recovery memo borne in Ext. PW-7/A, effectuated from the conscious and exclusive possession of the convict, recovery, of, poppy husk weighing 10 Kg & 600 grams. 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. The Investigating Officer concerned, through, recovery memo borne in Ext. PW-7/A, effectuated from the conscious and exclusive possession of the convict, recovery, of, poppy husk weighing 10 Kg & 600 grams. In sequel to recovery of the aforesaid quantum of contraband”, standing effectuated, from the purported conscious and exclusive possession, of, the accused, the Investigating Officer concerned, prepared NCB form in triplicate, form whereof stands comprised in Ext. PW-3/D “wherein” revelations occur, of, his “embossing upon” the bulk parcel, six seals of English Alphabet “M” (ii) also echoings occur in Ext.PW-3/E, of thereafter the bulk parcel standing re-sealed, by the SHO concerned, at the Police Station concerned, with six seals, carrying English Alphabet “H”. The aforesaid exhibit containing therein “the” poppy husk, exhibit whereof stood seized under Ext.PW-7/A (iii) “from the” purported conscious and exclusive possession, of, the accused “stood” under a road certificate comprised, in Ext.PW-5/B, hence sent for analysis to the FSL concerned. The FSL Junga, purveyed its report thereon, report whereof is comprised in Ext.PW-4/A, wherein it recorded a firm opinion, of, the contents enclosed in the aforesaid bulk parcel “sent to it” for analysis, holding ingredients of “poppy straw.” Apart therefrom, the prosecution for establishing the charge, to which the accused stood subjected to, relied upon the depositions’ of, official witnesses and upon the depositions of the independent witnesses. 10. The learned Additional Advocate General, has contended, that, with the FSL concerned receiving “in an un-tampered condition” the bulk parcel Ex. PW-7/C, recovery whereof stood effectuated, “through” memo comprised in Ext.PW-7/A “from the” purported conscious and exclusive possession of the accused, (i) also with the FSL concerned in its report rendered in respect of, contents enclosed therein, report whereof is comprised in Ext. PW-4/A “unveiling” the trite factum of “its” containing poppy husk, hence “ought to” constrain this Court, to affirm the findings of conviction recorded upon the accused. He contends that with the apposite NCB form, comprised in Ext. PW-3/D (ii) holding complete connectivity “with” the road certificate besides with the seizure memo, respectively, comprised in Ex. PW-5/B and PW-7/A, AND, also with the report of the FSL concerned, comprised in Ext. He contends that with the apposite NCB form, comprised in Ext. PW-3/D (ii) holding complete connectivity “with” the road certificate besides with the seizure memo, respectively, comprised in Ex. PW-5/B and PW-7/A, AND, also with the report of the FSL concerned, comprised in Ext. PW-4/A (iii) importantly “in respect” of all relevant descriptions vis-a-vis all seal impressions, initially embossed thereon “at” the relevant site of occurrence, by the Investigating Officer (iv) also in respect “of” descriptions of all the re-embossed/resealed “seal” impressions thereon, “by” the SHO concerned, (v) “ultimately”, with the prosecution witnesses except PW-10, to whom the case property stood shown in Court, theirs’ thereat categorically “voicing”, of, the case property “holding absolute analogity” with respect, to, all the apt descriptions in respect thereof, respectively, held in NCB form Ext. PW-4/A, road certificate Ext.PW-5/B, AND, with the report of FSL, comprised in Ext.PW-4/A” (vi) thereupon the judgment of conviction returned upon the accused hence warranting affirmation. The learned counsel appearing for the accused, has contended with much vigor, that the relevant intra-se connectivity's /congruities inter-se the seizure of bulk parcel “through” Ext. PW-7/A, “from” the purported conscious, and, exclusive possession of accused/appellant, vis-a-vis all the aforesaid relevant descriptions (vii) “not” standing efficaciously proven vis-z-vis the case property “at the stage of its” production in Court. He espouses that the relevant inter-se lack of analogities in respect of descriptions, of all seal impressions embossed thereon, at the stage when it stood seized, under memo Ext. He espouses that the relevant inter-se lack of analogities in respect of descriptions, of all seal impressions embossed thereon, at the stage when it stood seized, under memo Ext. PW-7/A (viii) and also at the stage when it stood resealed, by the SHO concerned besides in respect of all the apposite seal impressions, displayed in the report of the FSL, comprised in Ext.PW-4/A vis-a-vis the ultimate stage, of its production, in Court, whereat it stood shown to the prosecution witnesses, (ix) “is aroused” by the factum of (a) the Public Prosecutor concerned “at” the stage, of, the prosecution witnesses concerned, standing shown, “in Court” the relevant case property “his” not adducing before the trial Court, the relevant abstract, of, the Malkhana Register, with portrayals therein (x) that at the time of its standing retrieved, from, the Malkhana concerned, by its In-charge, the latter in contemporanity thereof, also recording in the relevant register, apposite entries in respect thereof (xi) the Public Prosecutor concerned at the time, of production of the case property in Court, for its hence being shown to the prosecution witnesses concerned “their not” making any communications therebefore, that “it” stood delivered to him, by an authorized official. (xii) However, the aforesaid submission, does not obtain any strength. (xiii) “Significantly” when a close discernment, of, the depositions’, of, the material prosecution witnesses’ “unveil” that the learned defence counsel “during” the course of holding them to cross-examination, (xiv) his thereat “omitting to” put apposite suggestion to them, in respect of the apposite bulk parcel borne in Ext.PW-7/C, seizure whereof occurred, through, memo comprised, in Ext. PW-7/A “not” standing related, to the apposite subsequently therewith prepared NCB Form, comprised in Ext.PW-3/D,(xv) AND vis-a-vis road certificate comprised in Ext.PW- 5/B, AND vis-a-vis the report, of the FSL comprised in Ext.PW-4/A ”(xvi) “intra-se un-relatability whereof” arising from their occurring apparent intra se incongruities, with respect to all the apposite descriptions, of all seal impressions, drawn thereon vis-a-vis the ones embossed, on, Ext.PW-7/A AND vis-a-vis all the apposite displays borne in NCB form, embodied in Ext. PW-3/D. (xvii) Even though, the learned defence counsel “at” the stage, of production of Ext.PW-7/C in Court “had” an opportunity to decipher, from, the case property “occurrence of” any apparent mis-descriptions and also want of any intra se congruities inter se, all the aforesaid exhibits vis-a-vis bulk parcel Ext.PW-7/C also when the learned defence counsel thereat, held the best opportune moment, to hence make the relevant unearthings, with respect, to, lack of all purported intra se incongruities inter-se the aforesaid exhibits vis-a-vis Ext.PW-7/C (bulk parcel) (xviii) “yet his” failing to thereat put apposite suggestions to the prosecution witness “in respect of” any lack of intra se analogitys hence erupting inter se the relevant e-choings, made in bulk parcel borne in Ext.PW-7/C, seizure whereof occurred “through” memo Ext.PW-7/A, AND respectively vis-a-vis NCB Form borne in PW-3/D, road certificate Ext.PW-5/B AND the report of the FSL comprised in Ext. PW-4/A” (xix) “significantly” with respect to all seal impressions embossed upon the bulk parcel, hence standing displayed or not displayed, in all the aforesaid memos. Consequently, his omitting to hence make any apposite unearthings, from PWs’ at the relevant stage, especially with respect to lack of any intra-se/inter-se analogities, with, respect to all relevant descriptions borne thereon, (xx) conspicuously with respect to all seal impressions borne thereon vis-a-vis all seal impressions borne, on all memos, prepared subsequently thereto, (xxi) hence begets an inference, of, the defence acquiescing, to recovery of poppy husk/straw, occurring “through” Ext.PW-7/A, also its conceding, of, recovery of the relevant contraband, hence occurring, from, the conscious and exclusive possession of the accused, also thereupon an inference is galvanized, of, bulk parcel, at, the imperative stage of its production in Court, hence standing efficaciously proven, to, stand recovered from the site of occurrence, from, the conscious and exclusive possession of the accused. 11. This Court has with great circumspection dwelt, upon, the efficacy of the aforesaid submissions, also has traversed, through, the entire evidence apposite thereto. 11. This Court has with great circumspection dwelt, upon, the efficacy of the aforesaid submissions, also has traversed, through, the entire evidence apposite thereto. Importantly, with the case property bearing the signatures of the accused; (b) besides, of the prosecution witnesses concerned; (c) importantly, with its bearing absolute concurrences inter-se all the embossed seal impressions thereon, vis-a-vis, those borne in the relevant memos, d) thereupon, with, each of the prosecution witnesses’ aforesaid, except PW-10, to, whom the case property stood shown, in Court (ii) hence also in tandem therewith rendering testifications with absolute unanimity, of its, thereat bearing concurrences, on all the aforesaid fronts, vis-a-vis the apposite therewith recitals borne in memo comprised in Ext. PW-7/A, whereunder its recoveries stood effectuated. (iii) thereupon, does reinforce the abovestated conclusion, of upon its production in Court, its evidently holding all apt concurrences with all connected therewith memos. 12. Nowat, the effect of an independent witness, to recovery memo Ext.PW-7/A, who, testified as PW-10, reneging from his previous statement recorded in writing, is, to stand construed alongwith the factum of his, in his cross-examination, to which he stood subjected, to, by the learned Public Prosecutor “on” his standing declared hostile, hence admitting the factum of his signatures occurring thereon. Consequently, when he admits the occurrence of his signatures, on, the relevant memos, thereupon the mandate of Section 91 and 92, of, the Indian Evidence Act whereupon he “on” admitting the occurrence of his signatures thereon, hence stood statutorily estopped to renege from all the recitals borne thereon, (i) thereupon the effect of his orally deposing in variance or in detraction of the recitals occurring therein, gets statutorily belittled (ii) rather when he naturally emphatically hence statutorily prove the recitals comprised in the apposite memo, his orally reneging from the recitals borne thereon “holds no evidentiary clout” (iii) nor it is legally apt to outweigh the creditworthiness of the testimonies rendered by the official witnesses qua the recovery of contraband under recovery memo Ext.PW-7/A hence standing effectuated, from, the conscious and exclusive possession of the accused. Contrarily the uncontroverted factum, of, his authentic signatures occurring in the relevant exhibit, concomitantly renders the apposite recitals borne thereon, to hold the gravest probative worth. Contrarily the uncontroverted factum, of, his authentic signatures occurring in the relevant exhibit, concomitantly renders the apposite recitals borne thereon, to hold the gravest probative worth. The ensuing sequel thereof, is that with the statutory estoppel constituted in Sections 91 and 92 of the Indian Evidence Act, hence barring independent witnesss, from, orally resiling from the contents of recovery memos, especially when he/they admit/admits, that the apposite signatures occurring thereon to hence belong to him/them, renders un-worthwhile besides insignificant, the factum qua his orally deposing in variance vis-a-vis its recorded recitals, (iv) thereupon per se an inference stands enhanced qua dehors his reneging from his previous statements recorded in writing, a deductions standing capitalized qua thereupon his proving the genesis of the prosecution case. 13. Be that as it may, the vigour of the aforesaid conclusion, would also stand benumbed, only when, evidence exists on record with respect to the independent witness concerned, standing pressurized or coerced by the Investigating Officer concerned “to” emboss his signatures, upon, seizure memo PW-7/A. However, the independent witness concerned, though, in his testification, makes an attempt to communicate that his signatures thereon were obtained, despite, contents thereof being not readover to him yet the aforesaid communication “is bereft of any vigour” especially when he “does not” make any unveilings, in his testification (i) that in the Investigating Officer concerned purportedly omitting to read over to him, the contents of the aforesaid exhibits “besides” hence his obviously without understanding their contents his appending his signatures thereon, rather embossing thereon by him, of his signatures, “hence spurring”, from any compulsion or duress standing exerted upon him, by the Investigating Officer “importantly” also when in respect thereof he omitted to record a complaint, with, the Officers superior to the Investigating Officer concerned. Consequently, the effect of the aforesaid communications, occurring, in the testifications of the independent witness (PW-10), does not, belittle the hereinabove drawn inference anvilled upon attraction “upon” the admitted factum of his authentic signatures occurring on Ext.PW-7/A “the” mandate of Section 91 and 92 of the Indian Evidence Act, whereupon dehors his making the aforesaid frail attempts, for belying the recitals borne in Ext.PW-7/A, he rather hence statutorily prove all the recitals occurring therein. 14. 14. For the reasons which have been recorded hereinabove, this Court holds that the learned trial Court has appraised the entire evidence on record in a wholesome and harmonious manner, apart therefrom, the analysis of the material on record by the learned trial Court, does not, suffer from any gross perversity or absurdity of mis-appreciation and non appreciation of evidence on record. The impugned judgment is affirmed and maintained. 15. However, the learned counsel for the appellant/convict, makes a prayer, at this stage, for reducing the sentence of imprisonment imposed upon the appellant/convict. He submits that the aforesaid submission hence being amenable to acceptance, given the convict, being a young person and, his hence being enabled to reform himself. The aforesaid submission is accepted. The sentence of imprisonment imposed, upon, the appellant/convict is reduced, from, three years’ rigorous imprisonment to two years’ rigorous imprisonment. Sentence of fine, imposed upon the appellant/convict is, reduced from Rs. 25,000/- to Rs. 10,000/-. In default of payment of fine, he shall further undergo simple imprisonment for one month. The period of detention already undergone by him, is ordered to be set off, from the sentence of imprisonment imposed upon him. Excess fine, if any, paid by him be refunded to him. 16. Consequently, the sentences of imprisonment and of fine, imposed upon the convict, is to the extent above, hence, modified. Records be sent back forthwith.