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2025 DIGILAW 547 (HP)

Khadak Bahadur Gautam v. State of H. P.

2025-03-28

VIRENDER SINGH

body2025
JUDGMENT : Virender Singh, J. Appellant Khadak Bahadur Gautam has filed the present appeal under Section 374 of the Code of Criminal Procedure (hereinafter referred to as the ‘Cr.P.C.’) against the judgment of conviction, dated 16.09.2019, and order of sentence, dated 20.09.2019, passed by the learned Special Judge, Ghumarwin, (Camp at Bilaspur), District Bilaspur, H.P. (hereinafter referred to as the ‘learned trial Court’). 2. By way of the judgment of conviction and order of sentence, as referred to hereinabove, the learned trial Court has convicted the appellant (hereinafter referred to as the ‘accused’) for the commission of offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ‘NDPS’) Act, and sentenced him to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.50,000/- and in case of non-payment of fine, to further undergo rigorous imprisonment for one year. 3. Brief facts, leading to the filing of the present appeal, before this Court, may be summed up as under:- The police of Police Station Sadar, District Bilaspur, H.P., has submitted charge sheet, disclosing therein, that ASI Roshan Lal, IO, has submitted a Ruka to the Police Station on 07.03.2018, mentioning therein that he, alongwith other police officials, was on patrolling duty. They had conducted the patrolling at Nouni. Meanwhile, HC Sanjeev Kumar No.80, Constable Chanchal Singh No.315 and other police officials of the STF Staff Cell, Bilaspur, also joined them. All of them had conducted the patrolling and reached at place known as Mandi, Manwa, then, at about 4:30 PM, they noticed a Nepali national, moving on foot, towards Nouni side, who was having a white coloured plastic sack, in his hand. On seeing the police vehicle, he became perplexed and when the police stopped the vehicle, the said Nepali national tried to flee away, as such, a suspicion had developed in the mind of the IO that he might be having some illegal substance, in his possession, as such, he was nabbed. On inquiry, he disclosed his name as Khadak Bahadur Gautam (accused). Thereafter, two independent witnesses, namely Subham and Kartik, were associated in the investigation. Subsequently, the sack was opened, which, on opening, was found to be containing 770 gram charas. The other codal formalities were completed and after the registration of FIR, the accused was arrested. 3.1. On inquiry, he disclosed his name as Khadak Bahadur Gautam (accused). Thereafter, two independent witnesses, namely Subham and Kartik, were associated in the investigation. Subsequently, the sack was opened, which, on opening, was found to be containing 770 gram charas. The other codal formalities were completed and after the registration of FIR, the accused was arrested. 3.1. The contraband so recovered, was sent to FSL Junga, from where, the positive report has been received. As such, the police has submitted the charge sheet, before the learned trial Court. 4. After securing the presence of the accused and after complying with the provisions of Section 207 Cr.PC., the learned trial Court found a prima-facie case, for commission of offence, punishable under Section 20 NDPS Act. As such, the accused has been charge sheeted, vide order dated 18.06.2018. 5. When the charge, so framed, was put to him, he has pleaded not guilty and claimed to be tried. As such, the prosecution has been directed to adduce evidence to substantiate the charge framed against the accused. Consequently, the prosecution has examined, as many as, twelve witnesses. 6. After the closure of the evidence, the entire incriminating evidence appearing against the accused was put to him, in his statement, recorded under Section 313 of Cr.P.C. The accused has denied the entire prosecution case and took the simplicitor defence of false implication and innocence. However, in his defence, the accused has not led any evidence. 7. The learned trial Court, after hearing the learned Public Prosecutor, as well as, learned defence counsel, has convicted and sentenced the accused, as mentioned above, vide judgment of conviction and order of sentence. 8. Feeling aggrieved by the said judgment of conviction and order of sentence, the present appeal has been preferred, by the accused, before this Court, mainly on the ground that the learned trial Court has not properly appreciated the evidence of the prosecution, as, the prosecution has not proved the case against the accused beyond all reasonable doubts. 9. The findings of the learned trial Court, are stated to be based upon surmises and conjectures. According to the accused, there are material contradictions in the statements of material witnesses, which have not been considered by the learned trial Court. 10. 9. The findings of the learned trial Court, are stated to be based upon surmises and conjectures. According to the accused, there are material contradictions in the statements of material witnesses, which have not been considered by the learned trial Court. 10. On the basis of the above facts, Shri S.D. Gill, learned counsel appearing for the accused, has prayed that the appeal may kindly be accepted and the accused may kindly be acquitted of the offence, for which, he has been charge sheeted and convicted and sentenced. 11. In order to decide the controversy involved in the present case, it would be just and appropriate for this Court to discuss the evidence, so adduced by the prosecution, before the learned trial Court. 12. In this case, the prosecution has associated two independent witnesses, namely PW-1, Kartik and PW-5, Subham. PW-1 Kartik, when appeared in the witness box has supported the case by deposing the fact that on 07.03.2018, he alongwith Up Pradhan Subham, was present at Mandi Manwa at about 4:30 PM, and the police party was also present there. According to him, the accused, who has disclosed his name as Bahadur, was carrying a white coloured sack and from the sack, charas weighing 770 gram was found. This witness has also deposed that the police prepared the memos, Ext. PW-1/A to Ext. PW-1/D, which bear his signatures. He has identified the parcel Ext. P-1, sack Ext. P-2, polythene envelope, Ext. P-3, and Bhang Ext. P-4, as the things, which were recovered from the accused. 12.1. In his cross examination, this witness has feigned his ignorance about the names of police officials, who were present on the spot. This witness has not seen their name plates. This witness has admitted that at place Nouni, there was a big chowk, where, many shops are situated. He has also admitted that when the police was conducting search of the people, at the said spot, many people were present there. This witness has further deposed that the accused was noticed by him from a distance of 20 meters. No statement of other local witnesses was recorded. Despite lengthy cross- examination of this witness, nothing material could be elicited from him. 12.2. PW-5 Subham has also supported the case of the prosecution, including identification of the case property. This witness has further deposed that the accused was noticed by him from a distance of 20 meters. No statement of other local witnesses was recorded. Despite lengthy cross- examination of this witness, nothing material could be elicited from him. 12.2. PW-5 Subham has also supported the case of the prosecution, including identification of the case property. Despite the efforts made by the learned defence counsel, nothing material could be elicited from him. He has admitted that one residential house is there at about 50 meters from the spot. Availability of the sack in other places has not been disputed by him. 12.3. PW-11, ASI Roshan Lal, is the IO, who has deposed about the proceedings, which he had conducted on the spot and the manner, in which, the accused was intercepted and arrested. He has specifically deposed that in the presence of PW-1 Kartik and PW-5 Subham, name and address of the person was inquired, who had disclosed his name as Khadak Bahadur Gautam. Thereafter, from the sack, charas, weighing 770 grams, was recovered. He has categorically deposed about the other formalities, which were conducted on the spot. This witness has specifically stated that there was no shop existing on the spot and this witness has not sent any constable for bringing the local witnesses. He has qualified the statement by deposing that there was no need, as local witnesses, already met them. PW-5 Subham was known to this witness. Rest, he has denied the other suggestions. 12.4. PW-2 HHC Nand Lal and PW-6 HC Subhash Kumar, are the witnesses of the spot, who have duly corroborated the version of the IO. In his cross examination, PW-2, has admitted that police had not called anyone from the shops. This witness has not admitted that the police had not conducted the search of independent witnesses PW-5 Subham and PW-1 Kartik. 12.5. PW-3, HC. Dev Raj, deposed about the fact that the special report was received by the then Additional Superintendent of Police, Bilaspur. 12.6 PW-4 Barfi Ram, took the case property to FSL Junga. 12.7. PW-7, HC Kuldeep Singh, was working as MHC Police Station, Sadar. He has deposed about the manner, in which, the case property was deposited with him and same was sent to SFSL, Junga, alongwith the requisite documents. 12.8. PW-8, ASI Raj Kumar, has registered the FIR. After receiving the Ruka Ext. 12.7. PW-7, HC Kuldeep Singh, was working as MHC Police Station, Sadar. He has deposed about the manner, in which, the case property was deposited with him and same was sent to SFSL, Junga, alongwith the requisite documents. 12.8. PW-8, ASI Raj Kumar, has registered the FIR. After receiving the Ruka Ext. PW-8/A, he has made the endorsement at circle red at point ‘A’, and registered the FIR, Ext.PW-8/B. 12.9. PW-9, Bhupinder Singh, has prepared the challan. PW-10 Inspector, Dharminder Singh, proved the factum of resealing the case property, when the same was produced before him. 13. When the IO, has associated the independent witnesses, in the proceedings, which were conducted on the spot, then, merely on the ground that IO, has deposed that one of the independent witnesses, namely Subham was known to him does not make the evidence of PW-5 Subham, inadmissible, nor, any suspicion can be raised against the evidence of the independent witnesses PW-1, Kartik and PW-5, Subham. The officials witnesses, who were present on the spot, along with the IO, have also supported the case of the prosecution, on all material aspects and despite the lengthy cross examination, nothing material could be elicited from them. 14. Even otherwise, minor contradictions, are bound to appear in the evidence of the truthful witnesses and parrot like version cannot be expected from a truthful witness. The learned trial Court in the present case, has rightly discussed the evidence of the prosecution witnesses and the conclusion drawn by the learned trial Court, i.e. the judgment of conviction does not require any interference in this case. 15. Learned counsel appearing for the accused could not point out, as to on what basis, the judgment of conviction is required to be interfered with this Court. No doubt, in the appeal, this Court can re-appreciate the evidence, so adduced. However, considering the peculiar facts and circumstances of the present case, according to which, independent witnesses have duly supported the case of the prosecution and despite lengthy cross- examinations, nothing material could be elicited from them, in the considered opinion of this Court, no ground for interference is made out. 16. However, considering the peculiar facts and circumstances of the present case, according to which, independent witnesses have duly supported the case of the prosecution and despite lengthy cross- examinations, nothing material could be elicited from them, in the considered opinion of this Court, no ground for interference is made out. 16. So far as the sentence is concerned, keeping in view the contraband, so recovered, in this case, this Court is of the view that the fine amount, which has been imposed upon the accused is liable to be modified and to that extent, the order of sentence, is required to be interfered with. Accordingly, the order of sentence is modified to the extent that the accused is directed to pay a fine of Rs.10,000/-, and in default of payment, of fine, he shall undergo simple imprisonment for a period of one month. 17. With these observations, the appeal is accordingly disposed of, so also the pending applications if any.