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Himachal Pradesh High Court · body

2018 DIGILAW 708 (HP)

Bal Krishan v. State of H. P.

2018-04-20

SURESHWAR THAKUR

body2018
JUDGMENT : Sureshwar Thakur, J. The instant appeal is directed against the judgment rendered on 22.12.2016, by the learned Special Judge, Hamirpur, District Hamirpur, upon, Sessions Trial No.25 of 2015, whereby the appellant stands convicted, AND, is consequently sentenced to undergo rigorous imprisonment, for seven years AND to pay a fine of Rs.50,000/-, for commission of an offence punishable under Section 20 (B) of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as 'NDPS Act’) AND in default of payment of fine, he is sentenced to suffer simple imprisonment for six months. 2. Brief facts of the case are that on 29.7.2015, a police party headed by ASI Khem Singh accompanied by HC Naresh Kumar No. 43, HC Pawan Kumar No. 58, HHC Rajesh Kumar No. 237, Const. Rajeev Kumar No. 148 and Const. Gogi Ram No. 149 left Police Station Sujanpur, District Hamirpur at 6:21 p.m. in official vehicle No. HP-67-1718 (Bolero Jeep) being driven by Constable Shashi Kant No. 108 for routine patrolling and illegal mining checking towards Chauri, Saphal etc. vide GD entry No. 49 (A) dated 29.7.2015. At about 7:40 P.M., the police party while patrolling Chauri, Sapahal road was present at a place about 1 ½ Kms ahead of Chauri where they stopped the accused coming from opposite side. The accused on seeing the police party and the police vehicle, turned around and ran towards “Ghasni”. The police officials associated Satish Kumar and Rajeev Kumar who were passing by at the relevant time, thereafter apprehended the accused and ascertained his name and identity in their presence. Thereafter, ASI Khem Singh disclosed lhis intention to conduct the personal search of the accused on suspicion. ASI Khem Singh along with other police officials and independent witnesses offered themselves to be searched by the accused in the presence of Constable Rajeev Kumar No. 148 and HHC Rajesh Kumar No. 237, but nothing incriminating was found. Separate memo was prepared duly signed by the independent witnesses. ASI Khem Singh constituted a raiding party by associating independent witnesses Satish Kumar and Rajeev Kumar along with Babita Thakur, Pradhan Gram Panchayat Saphal. Accused was apprised of his legal right to be searched either before a Gazetted officer or the Magistrate. The accused exercised his option to be searched by the police party vide written endorsement to this effect on the consent memo. Accused was apprised of his legal right to be searched either before a Gazetted officer or the Magistrate. The accused exercised his option to be searched by the police party vide written endorsement to this effect on the consent memo. Personal search of the accused was conducted in the presence of independent and official witnesses leading to recovery of one polythene bag concealed inside T-shirt near the waist area contained red colour carry bag containing black colour substance in the shape of Pancake (Chapati) and small sticks wrapped in thin transparent polythene wrapper. On checking, the substance was found to be charas. It was weighed with the help of electronic weighing scale available with the IO and was found 425 gms along with polythene wrappers. The contraband substance was thereafter put in the same red carry bag which was put in the polythene bag and sealed in the cloth parcel after affixing 6 seals bearing impression “H”. The sample seal “H” was taken on separate piece of cloth. Thereafter, ASI Khem Singh filled up the relevant columns of NCB-I form in triplicate. Fascimile seal impression “H” was taken on NCB-1 form. Seal “H” after its use was handed over to independent witness Satish Kumar, ASI Khem Singh after completing search and recovery formalities, prepared Ruka and handed over the same to Constable Rajeev Kumar No. 148 for the registration of FIR. The case FIR No. 67/2015, dated 29.7.2015 under Section 20 of the NDPS Act was registered against the accused. Statements of the witnesses were recorded under Section 161 Cr. P.C. Accused was arrested. SI Prakash Chand re-sealed the parcel, containing contraband substance in the presence of official witnesses. The sealed parcel was resealed after affixing 4 seals bearing impression “M”. The sealed parcel was handed over to HC Ravi Kumar, P.S. Sujanpur for safe custody. On 30.7.2015, the sealed parcel containing contraband substance was sent to State FSL Junga vide RC No. 93/15, dated 30.7.2015 through HHC Desh Raj No. 261. 3. On conclusion of the investigations, into the offences, allegedly committed by the accused, a report under Section 173 of the Code of Criminal Procedure was prepared, and, filed before the learned trial Court. 4. The accused was charged for committing, an offence punishable, under Section 20 (B) of the ND & PS Act. In proof of the prosecution case, the prosecution examined twelve witnesses. 4. The accused was charged for committing, an offence punishable, under Section 20 (B) of the ND & PS Act. In proof of the prosecution case, the prosecution examined twelve witnesses. On conclusion of recording of prosecution evidence, the statement of the accused, under Section 313 Cr.P.C., was, recorded by the trial Court, wherein he made disclosures qua his false implication. He did not lead any defence evidence. 5. On an appraisal of evidence on record, the learned trial Court, recorded findings of conviction against the accused/appellant herein. 6. The accused/appellant, is, aggrieved by the judgment of conviction recorded by the learned trial Court. The learned Counsel appearing, for the accused/appellant 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 the evidence on record, rather, theirs standing sequelled by gross mis-appreciation, by it, of the material on record. Hence, he contends qua the findings of conviction being reversed by this Court, in the exercise of its appellate jurisdiction, and, theirs being replaced by findings of acquittal. 7. On the other hand, the learned Additional Advocate General, has with compatible force and vigor, contended that the findings of conviction recorded by the learned Court below, 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. PW1/E, effectuated from the conscious and exclusive possession of the convict, recovery, of, Charas weighing 450 gms. In sequel to recovery (s) of the aforesaid quantum of contraband, standing effectuated, from the purported conscious and exclusive possession, of, the accused person, the Investigating Officer concerned, prepared NCB form, form whereof stands comprised in Ext. PW12/A “wherein” revelations occur, of, his “embossing upon” the bulk parcel (s) comprised in Ext. P-1 , six seals of English Alphabet “H” (ii) also echoings occur in Ext.PW7/C, of, thereafter Ext. P-1 standing re-sealed, by the SHO concerned, at the Police Station concerned, with four seals, carrying English Alphabet “M”. PW12/A “wherein” revelations occur, of, his “embossing upon” the bulk parcel (s) comprised in Ext. P-1 , six seals of English Alphabet “H” (ii) also echoings occur in Ext.PW7/C, of, thereafter Ext. P-1 standing re-sealed, by the SHO concerned, at the Police Station concerned, with four seals, carrying English Alphabet “M”. The aforesaid exhibit containing therein “the” Charas, exhibit whereof stood seized under Ext.PW 1/E (iii) “from the” purported conscious and exclusive possession, of, the accused “stood” under a road certificate comprised, in Ext.PW-12/F, hence sent for analysis to the FSL concerned. The FSL Junga purveyed its report thereon, report whereof is comprised in Ext.PZ, wherein it recorded a firm opinion, of, the contents enclosed in the aforesaid bulk parcel “sent to it” for analysis, holding ingredients of Charas. Apart therefrom, the prosecution for establishing the charge, to which the accused stood subjected to, relied upon the depositions’ of, official witnesses and, also upon the testification (s) of independent witnesses. 10. The learned Additional Advocate General, has contended, that, with the FSL concerned receiving “in an untampered condition” the bulk parcel, comprised in Ext. P-1, recovery whereof stood effectuated, “through” memo comprised in Ext.PW1/E “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. PZ, “unveiling” the trite factum of “its” containing Charas, 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. PW12/A (ii) holding complete connectivity “with” the road certificate besides with the seizure memo, comprised in Ext. PW1/E, AND, also with the report of the FSL concerned, comprised in Ext. PZ (iii) importantly “in respect” of all the relevant descriptions vis-à-vis all seal impression (s), initially embossed thereon “at” the relevant site of occurrence, by the Investigating Officer (iv) also in respect “of” description (s) of all the re-embossed/ resealed “seal” impression (s) thereon, “by” the SHO concerned, (v) “ultimately”, with the prosecution witness (es), 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 description (s), in respect thereof, respectively, held in NCB form Ext. PW12/A, road certificate Ext.PW-12/F, AND, with the report of FSL, comprised in Ext.PZ, (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)/congruity (s) interse the seizure of bulk parcel, “through”, Ext. PW1/E, “from” the purported conscious and exclusive possession of accused/appellant, vis-à-vis all the aforesaid relevant descriptions (vii) “not” standing efficaciously proven to be linked vis-à-vis the case property “at the stage of its” production in Court. He espouses that the relevant interse lack of analogity (s) in respect of description (s), of all seal impression (s) embossed thereon, at the stage when it stood seized, under memo Ext. PW1/E (viii) and also at the stage when it stood resealed, by the SHO concerned, besides in respect of all the apposite seal impression (s), displayed in the report of the FSL, comprised in Ext.PZ vis-à-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 witness (es) concerned, standing shown, “in Court” the relevant case property “his” not adducing before the trial Court, the relevant abstract, of, the Malkhana Register, with portrayal (s) therein (x) that at the time of its standing retrieved, from, the Malkhana concerned, by its Incharge, the latter in contemporanity thereof, 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 communication (s) 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.P-1, seizure whereof occurred, through, memo comprised, in Ext. PW1/E hence “not” standing related, to the apposite subsequently therewith prepared NCB Form, comprised in Ext. PW12/A, (xv) AND vis-à-vis road certificate comprised in Ext.PW-12/F, AND vis-a-vis the report, of the FSL comprised in Ext. PW1/E hence “not” standing related, to the apposite subsequently therewith prepared NCB Form, comprised in Ext. PW12/A, (xv) AND vis-à-vis road certificate comprised in Ext.PW-12/F, AND vis-a-vis the report, of the FSL comprised in Ext. PZ” (xvi) “intra se un-relatability whereof”, arising from their occurring apparent intra se incongruity (s), with respect to all the apposite description (s), of all seal impression (s), drawn thereon vis-à-vis the ones embossed, on, Ext.P-1 AND vis-à-vis all the apposite display (s) borne in NCB form, embodied in Ext. PW 12/A. (xvii) Even though, the learned defence counsel “at” the stage, of production of Ext.P-1 in Court “had” an opportunity to decipher, from, the case property “occurrence of” any apparent mis-descriptions, AND, also want of any intra se congruity (s) inter se, all the aforesaid exhibits vis-à-vis bulk parcel Ext.P-1 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 interse the aforesaid exhibits vis-à-vis Ext.P-1 (bulk parcel) (xviii) “yet/his” failing to thereat put apposite suggestion (s) to the prosecution witness “in respect of” any lack of any intra se analogity (s) erupting inter se the relevant echoings, made in bulk parcel borne in Ext.P-1, seizure whereof occurred “through” memo Ext.PW-1/E, AND, respectively vis-à-vis NCB Form borne in PW12/A, road certificate Ext.PW-12/F AND the report of the FSL comprised in Ext. PZ” (xix) “significantly” with respect to all seal impression (s) embossed upon Ext. P-1 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 interse analogity (s), with, respect to all relevant description (s) borne thereon, (xx) conspicuously with respect to all seal impression (s) borne thereon vis-à-vis all seal impression (s) borne, on all memos, prepared subsequently thereto, (xxi) hence begets an inference, of, the defence acquiescing, to recovery of Charas, occurring “through” Ext.PW1/E, 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 Ext.P-1, 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. 11. This Court has with great circumspection dwelt, upon, the efficacy of the aforesaid submission (s), also has traversed, through, the entire evidence apposite thereto. Importantly, with the case property, rather uncontrovertedly bearing the signatures of the accused; b) besides, of, the prosecution witnesses concerned ; c) importantly, with its bearing absolute concurrence (s) interse all the embossed seal impressions thereon, vis-à-vis, those borne in the relevant memos, d) thereupon, with, each of the prosecution witnesses’ aforesaid, to whom the case property stood shown, in Court (ii) hence also thereat all in tandem therewith rendering testification (s) with absolute unanimity, of its, thereat bearing concurrence (s), on all the aforesaid fronts, vis-à-vis the apposite therewith recital (s) borne in memo comprised in Ext. PW1/E, whereunder its recovery (s) stood effectuated. (iii) thereupon, does reinforce the above stated conclusion, of, upon its production in Court, its evidently holding all apt concurrence (s) with the connected therewith memos. 12. Furthermore, the sample seal taken, on piece (s) of cloth, bearing Ext. P-1, holds the signatures of the accused, as also of witnesses thereto, even Exhibit PW3/C holds the signatures of the accused, as well as of all the official witnesses thereto, (i) besides sample seal cloth parcel Ext. P-1 holds the signatures of the accused, and, of the witnesses thereto. (ii) With occurrence of all aforesaid signatures thereon, especially when the learned defence counsel, has not, made any attempt for ripping apart authenticity (s) thereof (iii) also his failing to make attempts, in respect of the signatures, of the accused being obtained under compulsion or under duress, also, boosts an inference of his conceding vis-à-vis the truth of all the recitals occurring therein. (iv) Conspicuously, therefrom, it is to be concluded of his omitting to, make endeavour (s) in respect of the relevant item (s) of contraband, recovered under Ext. PW 1/E, being unrelated to parcel Ext.P-1. (v) Omission (s) of aforesaid endeavour (s) also negate the submission of the learned counsel for the appellant, of, the relevant recovery being bereft of any sanctity, theirs being sequelled by sheer contrivance, deployed by the Investigating Officer concerned, for thereupon his falsely implicating the accused. 13. PW 1/E, being unrelated to parcel Ext.P-1. (v) Omission (s) of aforesaid endeavour (s) also negate the submission of the learned counsel for the appellant, of, the relevant recovery being bereft of any sanctity, theirs being sequelled by sheer contrivance, deployed by the Investigating Officer concerned, for thereupon his falsely implicating the accused. 13. Nowat, the effect of independent witnesses, to recovery memo Ext.PW-1/E, reneging, from their respective previous statements recorded in writing, is to stand construed, alongwith, the factum of theirs’ in their respective cross-examinations, to which they stood subjected, to, by the learned Public Prosecutor “on” theirs standing declared hostile, hence admitting the factum of their signatures occurring thereon. Consequently, when they admit the occurrence of their signatures, on the relevant memo (s), thereupon the mandate of Section 91 and 92 of the Indian Evidence Act whereupon they “on” admitting the occurrence of their signatures thereon, hence stood statutorily estopped to renege from all the recitals borne thereon, (i) thereupon the effect of theirs orally deposing in variance or in detraction of the recitals which occur therein, gets statutorily belittled, (ii) rather, when hence they naturally emphatically hence statutorily prove all the recitals comprised in the apposite memo, thereupon theirs orally reneging from all the recitals borne thereon “holds no evidentiary clout” (iii) nor it is legally apt to outweigh the creditworthiness of the testimony (s) of the official witnesses qua the recovery of contraband under recovery memo Ext.PW 1/E, hence standing effectuated from the conscious and exclusive possession of the co-accused. Contrarily the uncontroverted factum of their, authentic signatures occurring in the relevant exhibits, concomitantly renders all the apposite recitals borne thereon to hence 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, barring independent witnesses to orally resile from the contents of Ext.1/E, (iv) especially when they admit that the apposite signatures occurring thereon, belong to them, thereupon renders unworthwhile besides insignificant the factum qua theirs orally deposing in variance of its recorded recitals, (v) whereupon per se an inference stands enhanced qua dehors theirs reneging from their previous statement (s) recorded in writing, rather deduction (s) standing capitalized qua hence theirs’ proving the genesis of the prosecution case. Aggravated momentum, to, of the aforesaid inference (s), is garnered (i) by the aforesaid witnesses’ also, during the course of their respective cross-examination (s), to which both stood subjected to, by the learned APP, on theirs being, declared hostile, rather making echoings, of the relevant recovery (s), made, under memo borne in Ext. PW1/E, being in their respective presence (s), hence standing effectuated from the conscious, and, exclusive possession, of, the accused. 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 appellants/convicts, makes a prayer, at this stage, for reducing the sentence of imprisonment imposed upon the appellants/convicts. 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, seven years’ rigorous imprisonment to, two years’ rigorous imprisonment. Sentence of fine, imposed upon the appellant/convict is, reduced from Rs. 50,000/- to Rs. 25,000/- each. In default of payment of fine, he shall further undergo simple imprisonment for three months. The period of detention already undergone by him, is ordered to be set off, from the sentence of imprisonment imposed upon him. 16. Consequently, the sentence (s) of imprisonment and of fine, imposed upon the convict, is to the extent above, hence, modified. Records be sent back forthwith.