Himachal Pradesh High Court
State Of Himachal Pradesh vs Of on 28 October, 2016
Bench: Dharam Chand Chaudhary, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Appeal No. 434 of 2011.
.
Reserved on: 29.7.2016.
Date of decision: 28.10.2016.
State of Himachal Pradesh ......Appellant.
Versus
of
Kamlesh Kumar & others. ......Respondents.
Coram
rt
The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge.
The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
Whether approved for reporting?1 Yes.
For the appellant : Mr. D.S. Nainta and Mr. Virender
Verma, Addl. AGs.
For the respondents : Mr. Ajay Chandel, Advocate.
Dharam Chand Chaudhary, J.
The learned Special Judge, (Fast Track Court) Kullu, Himachal Pradesh, has acquitted accused Kamlesh Kumar and accused Mahender Singh of the charge under Section 20(b)(ii) (c) read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act' in short), whereas their co-accused Swaru Ram under Section 1 Whether the reporters of the local papers may be allowed to see the Judgment? yes.
::: Downloaded on - 15/04/2017 21:28:28 :::HCHP 220(b)(ii) (c) read with Section 29 of the Act, vide impugned judgment dated 17.5.2011, passed in sessions trial No. 43 of .
2010.
2. The allegations against accused Kamlesh Kumar, in a nut shell, are that on 22.3.2010, around 2:00 AM (midnight) at Khalara-nullah, District Kullu, during the course of checking of of the bag he was carrying with him, charas weighing 2.500 kgs was recovered therefrom him whereas charas weighing 2.200 rt kgs from his co-accused Mahender Singh. Since accused Kamlesh allegedly was found to be in the possession of charas whereas facilitated the illicit trafficking of charas by his co-
accused Mahender Singh, therefore stated to have committed an offence punishable under Section 20(b)(ii) (c) read with Section 29 of the Act. Similarly, charge against Mahender Singh is that he was not only found to be in possession of charas weighing 2.200 kgs but also facilitated the illicit trafficking of charas weighing 2.500 kgs. by his co-accused Kamlesh Kumar and thereby he has also committed an offence punishable under Section 20(b)(ii) (c) read with Section 29 of the Act. If coming to the allegations against their co-accused Swaru Ram, he allegedly facilitated the transportation of 2.500 kgs charas by accused Kamlesh Kumar and 2.200 kgs. of charas by accused Mahender Singh and thereby abetted the commission of offence by his co-
::: Downloaded on - 15/04/2017 21:28:28 :::HCHP 3accused and committed the offence punishable under Section 20(b)(ii) (c) read with Section 29 of the Act.
.
3. The record reveals that on 22.3.2010 around 1:00 AM in the midnight, a police party headed by PW-4 ASI Hem Raj of Police Station Sadar Kullu left towards village Bhadai on Lag Valley road for laying naka to detect the crimes. Rapat Ext. PW-
of 2/A was entered in rapat Rojnamcha by PW-2 Constable Narender. The other members of the raiding party were PW-3 rt Const. Krishan Chand, HC Parmender Singh and Const. Khoob Ram. The official vehicle No. HP-34-A-9986 was being driven by HHG Aadh Nath. At about 2:00 AM, when the police party was present at Khalara nullah bridge, three persons were spotted coming down from village Bhadai towards Kullu side. They were seen with the help of search light. Accused Kamlesh and accused Mahender Singh were found to be carrying bags on their back whereas accused Swaru Ram was empty handed. They were spotted by the police and their antecedents ascertained.
Accused Kamlesh Kumar was carrying military coloured bag with him whereas accused Mahender Singh was carrying cream coloured bag. The I.O. PW-4 ASI Hem Raj suspected that the accused might be carrying some narcotic drugs or psychotropic substance with them, therefore, the option was given to them for being searched either before a Magistrate or a Gazetted Officer, vide memos Ext. PW-3/A, PW-3/B and PW-3/C. They allegedly ::: Downloaded on - 15/04/2017 21:28:28 :::HCHP 4 opted for being searched by the police officials present on the spot. On this, the I.O. first offered his own search vide memo .
Ext. D-1, however, nothing incriminating was recovered from him. Being odd hours and the place an isolated one, it was not possible to associate someone as independent witness, therefore, I.O. PW-4 ASI Hem Raj has associated Krishan Chand of (PW-3) and HC Parminder as witnesses and conducted personal search of all the three accused. Nothing incriminating was found rt in their possession during their personal search. However, during the course of search of the bag allegedly military coloured, being carried by accused Kamlesh Kumar, one yellow coloured polythene bag was found kept therein. On search of the polythene bag, charas in the shape of sticks was found kept therein. The recovered charas was weighed and it was found to be 2.500 kgs. The same was again put in the same polythene envelope and in the same bag. Thereafter, the bag was wrapped in a piece of cloth (pulinda), which was sealed with seven seals of seal impression "A". During the course of checking of the bag being carried by accused Mahender Singh, one polythene bag was recovered therefrom. On the search of the said polythene bag, charas weighing 2.200 kgs. was recovered in the shape of sticks. The polythene envelope was put in the same bag and thereafter wrapped in pulinda, which was also sealed with seven impressions of seal "A". NCB-I form Ext. PW-1/C was filled in ::: Downloaded on - 15/04/2017 21:28:28 :::HCHP 5 triplicate. Sample of seal Ext. PW-3/E was separately drawn on a piece of cloth. The parcels containing the recovered charas were .
thereafter taken into possession vide recovery memo Ext. PW-
3/D. It is thereafter, rukka Ext. PW-4/A was prepared and sent through PW-3 Const. Krishan Chand to Police Station, Kullu for registration of the case. Site plan Ext. PW-4/B was also prepared of and the statements of the witnesses recorded as per their version.
4. rt The accused were interrogated. The case file was brought to spot by PW-3 Constable Krishan Chand and received by IO PW-4 ASI Hem Raj at 6:15 AM. It is thereafter, the accused were arrested at 6:30 AM. Information qua the offence they committed and the provision for punishment therefor was given to all the three accused vide memos Ext. PW-3/F to Ext. PW-3/H and it is thereafter they were arrested.
5. On the completion of investigation on the spot, the I.O. along with the case property and accused came to Police Station, Kullu. The case property was produced before SHO Tej Ram (PW-7) along with sample of seal and NCB-I form in triplicate. PW-7 SHO Tej Ram has resealed both the pulindas with 3-3 impressions of seal "T". The relevant columns of NCB-I form Ext. PW-1/C were also filled in. The sample of seal "T" Ext.
PW-7/B was also drawn separately. Thereafter, PW-7 SHO Tej Ram had handed over the case property along with documents ::: Downloaded on - 15/04/2017 21:28:28 :::HCHP 6 to Ram Krishan, the then MHC, Police Station, Kullu. PW-1 has made the entries Ext. PW-1/A qua receipt of sealed pulindas in .
the malkhana register at Sr. No. 48. He handed over the case property vide RC No. 90/2010 Ext. PW-1/B to Const. Inder Dev PW-5 with a direction to deposit the same at FSL, Junga. Before that, the entries against sr. No. 12 of NCB-I form Ext. PW-1/C of were made by him. Constable Inder Dev (PW-5) had deposited the case property in safe custody in the laboratory and produced rt the receipt on RC before PW-1, the MHC. The special report Ext.
PW-6/A was prepared and handed over to Addl. SP, Kullu. PW-6, the then Reader to DSP (Hqs.) Kullu, has made entries Ext. PW-
6/B in the relevant register in this regard.
6. On receipt of the report of the Chemical Examiner Ext. PW-8/A and on completion of the investigation, report under Section 173 Cr.P.C. was filed against all the three accused in the trial Court.
7. Learned trial Court, on consideration of the report and the documents annexed therewith as well as hearing the learned Public Prosecutor and also the defence counsel, has found a prima-facie case for the commission of offence punishable under Section 20(b)(ii) (c) read with Section 29 of the Act against all the three accused. The charge against them was, therefore, framed accordingly.
::: Downloaded on - 15/04/2017 21:28:28 :::HCHP 78. Since the accused persons have pleaded not guilty and claimed trial, therefore, the prosecution in order to sustain .
the charge framed against each of them, has produced on record oral as well as documentary evidence. The material prosecution witnesses are PW-3 Constable Krishan Chand and I.O PW-4 ASI Hem Raj. The remaining prosecution witnesses being police of officials are also formal as they remained associated with the investigation of the case in one way or the other. Their rt testimony as such, at the most, can be used as a link evidence.
9. The learned Special Judge, after holding full trial and on analyzing the oral as well as documentary evidence available on record, has arrived at a conclusion that the prosecution has failed to prove its case against the accused beyond all reasonable doubt. They all have, therefore, been acquitted of the charges framed against each of them. The State, being aggrieved and dissatisfied with the impugned judgment has questioned the legality and validity thereof on the grounds, inter alia, that the prosecution evidence has been appreciated by the learned trial Court in a slip shod and perfunctory manner. The trial Court has allegedly set unrealistic standards to evaluate the cogent and reliable evidence produced by the prosecution. The testimony of the prosecution witnesses has been discarded for untenable reasons in the absence of any proof of their enmity with the accused. The findings recorded by the Court below are ::: Downloaded on - 15/04/2017 21:28:28 :::HCHP 8 stated to be based upon conjectures and surmises. Being so, the impugned judgment has been sought to be quashed and set .
aside and all the accused have been sought to be convicted and sentenced.
10. Learned Addl. Advocate General has vehemently argued that the testimony of police officials is as much good as of that of any other independent person. Also that PW-3 Constable Krishan Chand and PW-4 IO ASI Hem Raj, while in the witness rt box, have made consistent statements qua material aspects of the case. Their testimonies have erroneously been brushed aside by learned trial Court and undue weightage has been given to non-joining of independent witnesses by the I.O. The contradictions, minor in nature, are stated to be given undue weightage.
11. On the other hand, Mr. Ajay Chandel, learned defence counsel, has pointed out from the record that the contradictions in the statements of the prosecution witnesses as taken note of by learned trial Judge goes to the very root of the prosecution case. Therefore, in order to bring guilt home to the accused, it is not safe to place reliance upon the testimonies of official witnesses PW-3 Constable Krishan Chand and PW-4 IO ASI Hem Raj.
12. The only point need adjudication in this case is as to whether irrespective of prosecution having proved its case ::: Downloaded on - 15/04/2017 21:28:28 :::HCHP 9 against the accused beyond all reasonable doubt, they have been erroneously acquitted of the charge framed against them.
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13. In order to decide the fate of this case, the reappraisal of the evidence produced by the prosecution and the accused in their defence is required. However, before that it is desirable to note that an offence under the Act is not only of heinous but serious in nature. An offence under the Act is not against an individual but against the Society, as a whole, rt because the illicit trafficking of drugs not only affects a particular individual but the public at large and in particular our young generation. The NDPS Act is a piece of social legislation enacted with the sole idea to curb illicit trafficking of drugs. A case registered under the Act, therefore, needs consideration, keeping in mind the above factors. At the same time, keeping in view there being provision of deterrent punishment against an offender, if ultimately held guilty, the provisions contained under the act to safeguard an offender from conviction and sentence also need to be looked into thoroughly so that any innocent person may not be convicted and sentenced.
14. The statute casts a duty upon the prosecution not only to prove beyond all reasonable doubts the commission of an offence by an offender, but additionally the compliance of various provisions mandatory in nature enshrined thereunder.
Thus, law casts a duty on the Courts, seized of the case ::: Downloaded on - 15/04/2017 21:28:28 :::HCHP 10 registered under the Act, to deal with it with all circumspect and caution and before recording the findings of conviction against .
an offender to satisfy itself about the compliance of procedural requirements and also the availability of cogent and reliable evidence connecting the accused with the commission of the offence.
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15. The perusal of the judgment under challenge reveals that the pleas raised by the accused in their defence that the rt options under Section 50 of the Act has not been given to them in accordance with law and that on account of no independent person having been associated as a witness, they cannot be held guilty for the commission of the alleged offence, have been rejected by learned trial Court while concluding that there is no ambiguity in the matter of option for their search given by the I.O. ASI Hem Raj (PW-4), vide memos Exts. PW-3/A, PW-3/B and PW-3/C. Also that, being odd hours i.e. 2:00 AM (midnight) and the place where the accused were apprehended an isolated as well as witnesses PW-3 Const. Krishan Chand and PW-4 ASI Hem Raj, both have stated that no one was available for being associated as independent witness, the non-joining of the independent witness in the instant case is stated t be not fatal to the prosecution case. The findings, so recorded by learned trial Court, have attained the finality, being not challenged by the accused persons by filing appeal(s) in this Court.
::: Downloaded on - 15/04/2017 21:28:28 :::HCHP 1116. Learned trail Judge has recorded the findings of acquittal of the accused on being influenced by so called .
omissions and procedural irregularities and contradictions i.e. filling up of NCB-I form separately, availability of only one set of NCB-I form on record, there being no mention of parcel No. 1 and parcel No. 2 by the I.O. when the same were sealed after the of recovery effected from accused Kamlesh and accused Mahender Singh whereas there is mention of parcel No. 1 and parcel No. 2 rt in the report of the chemical examiner Ext. PW-8/A, the I.O. failed to put any specific mark on the parcels to show as to which parcel contains the charas recovered from each of the accused and that in the NCB-I form, total weight of the charas has been mentioned and there is no mention as to how much charas was recovered from the bag recovered from the possession of accused Kamlesh and how much from that of accused Mahender Singh. The so called discrepancies in the statements of the witnesses PW-3 Const. Krishan Chand and PW-4 ASI Hem Raj qua the colour of the bag recovered from accused Kamlesh and one from accused Mahender Singh also weighed with learned trial Judge while recording the findings of acquittal against them. The plea in defence that one ITBP jawan had teased wife of 'rehriwala' and that said Jawan was summoned to the Police Station where compromise was arrived at and it is accused Kamlesh who was one of the signatory to the compromise deed, ::: Downloaded on - 15/04/2017 21:28:28 :::HCHP 12 as emerges from the trend of cross-examination of PW-3 Const.
Krishan Chand and PW-4 ASI Hem Raj, raised by the accused .
persons also weighed with learned trial Judge while acquitting the accused persons. Learned trial Judge after noticing such lapses, procedural irregularities and discrepancies in the prosecution evidence has acquitted all the accused from the of charges framed against each of them. As regards the commission of offence punishable under Section 29 of the Act, rt learned trial Judge has concluded that no investigation was made to show the nexus, if any, between all the three accused. The evidence that there was meeting of mind and accused Kamlesh as well as accused Mahender Singh conspired with accused Swaru Ram and it is said accused Swaru Ram who had abetted the other co-accused in the commission of the offence under the Act is not available on record. The I.O. even is stated to have not recorded any confessional statement of accused Kamlesh and accused Mahender Singh regarding involvement of their co-
accused Swaru Ram. It has rather been observed that merely accompanying accused Kamlesh and accused Mahender Singh in odd hours does not make accused Swaru Ram liable for the recovery of charas effected from them.
17. It is seen that learned trial Judge has rightly emphasized that the confessional statements of accused Kamlesh and accused Mahender Singh regarding involvement of ::: Downloaded on - 15/04/2017 21:28:28 :::HCHP 13 accused Swaru Ram has not been recorded and as such no case under Section 29 of the Act has been found to be made out .
against accused Swaru Ram.
18. The present is a case of recovery of charas weighing 2.500 kgs. from the bag in possession of accused Kamlesh whereas 2.200 kgs from the bag in the possession of accused of Mahender Singh during odd hours i.e. 2:00 AM (midnight).
Learned trial Judge, after taking note of the procedural rt irregularities, discrepancies and contradictions in the prosecution evidence has concluded that the recovery of charas from the conscious and physical possession of the accused is not proved.
19. Be it stated that the recovery of the contraband from the exclusive and conscious possession of the accused is sine qua non to bring guilt home to him. This aspect needs evidence, cogent and reliable. The joining of independent persons to witness the search and seizure is always in the interest of fair trial. Anyhow, in this case learned trial Judge, has already concluded that it was not possible to join the independent person as a witness and also observed that the testimony of official witnesses, if inspire confidence, can also be relied upon to bring the guilt home to the accused. The Apex Court in Girija Prasad vs. State of M.P., (2007) 7 SCC 625 has held that the testimony of official witnesses is as much good as that of independent person, however, the same is required to be examined with all ::: Downloaded on - 15/04/2017 21:28:28 :::HCHP 14 circumspection and caution. Similar is the ratio of the judgment of the apex Court in Makhan Singh vs. State of Haryana, (2015) .
12 SCC 247. Being so and the findings recorded by learned trial Judge that it was not possible for the I.O to have associated independent person as witness in this case, the testimony of official witnesses, who are PW-3 Const. Krishan Chand and PW-4 of ASI Hem Raj, is worthy of credence or not, has to be adjudged vis-à-vis given facts and circumstances of the case and also the rt documentary evidence available on record.
20. The present is a case of recovery of huge quantity of charas from the conscious and physical possession of accused Kamlesh and accused Mahender Singh. They were apprehended along with their co-accused Swaru Ram during odd hours. We can make reference to Ext. PW-2/A, daily diary report to arrive at a conclusion that the police party headed by PW-4 ASI Hem Raj left the Police Station at 1:00 AM (midnight) for laying nakka towards village Badhai side on the Lag valley road. All the three accused were nabbed by the police at Khalara-nullah at 2:00 AM.
It is not their defence that they were not nabbed at Khalara-
nullah in the manner as claimed by the prosecution. The plea in defence that on 21.3.2010 accused Kamlesh Kumar was present in the Police Station and that he had witnessed compromise-
deed in a case of teasing of wife of some 'rehriwala' by an ITBP jawan rather reveals that the accused were present in the Police ::: Downloaded on - 15/04/2017 21:28:28 :::HCHP 15 Station for the reason that such suggestion was made to PW-3 Const. Krishan Chand and PW-4 ASI Hem Raj on their behalf by .
the learned defence counsel representing them. Had they not been apprehended in the manner as claimed by the prosecution, they would have explained the reason of their presence in the Police Station. The plea of accused Swaru Ram that he was of waiting for arrival of bus at bus stand Kullu also reveals that the said accused has also admitted his presence at Kullu. Since all rt the accused belong to different villages in Tehsil Padhar, Distt.
Mandi, it is not known as to why they had gone to Kullu and more particularly why they were in the Police Station on 21.3.2010. As a matter of fact, recovery of the charas has also been made from them during the night intervening 21/22.3.2010. Therefore, it would not be improper to conclude that the accused were nabbed by the police party headed by PW-4 ASI Hem Raj during the night intervening 21/22.3.2010 at Khalara-nullah around 2:00 AM. Spot map Ext. PW-4/B can also be relied upon to substantiate the prosecution case in this regard.
21. Now, if coming to the search and seizure, there is no need to go into the question of compliance of Section 50 of the Act because the findings recorded by learned trial Judge qua this aspect of the matter has attained finality. The search memo Ext.
PW-3/D, rukka Ext. PW-4/A, FIR Ext. PW-7/A and the special report Ext. PW-4/C substantiate the prosecution case qua ::: Downloaded on - 15/04/2017 21:28:28 :::HCHP 16 accused Kamlesh was carrying military coloured bag whereas accused Mahender Singh cream coloured bag. True it is that the .
cream coloured bag is Ext. P-2 whereas military coloured bag is Ext. P-6. No doubt, PW-3 Const. Krishan Chand has identified the bag Ext. P-2 to be the same which according to him was recovered from accused Kamlesh Kumar whereas bag Ext. P-6 of from accused Mahender Singh. However, he seems to have confused himself because cream coloured bag Ext. P-2 as per the rt prosecution case supported by his own testimony in his examination-in-chief and the documents, search memo Ext. PW-
3/D, rukka Ext. PW-4/A, FIR Ext. PW-7/A and the special report Ext. PW-4/C, was being carried by accused Mahender Singh whereas military coloured bag Ext. P-6 by accused Kamlesh. If coming to the testimony of PW-4 ASI Hem Raj, he has specifically stated that military coloured bag Ext. P-6 was being carried by accused Kamlesh whereas cream coloured bag Ext. P-2 by accused Mahender Singh. Therefore, the statement of PW-3 Const. Krishan Chand that cream coloured bag was being carried by accused Kamlesh whereas green (military) coloured bag by accused Mahender Singh is not a contradiction of such a nature to belie the prosecution case, which finds support from the testimony of PW-4 ASI Hem Raj and also the documentary evidence referred to hereinabove. Therefore, it would not be improper to conclude that the bag Ext. P-6 was being carried by ::: Downloaded on - 15/04/2017 21:28:28 :::HCHP 17 accused Kamlesh Kumar whereas cream coloured bag Ext. P-2 by accused Mahender. We are, therefore, not in agreement with the .
findings to the contrary recorded by learned trial Judge.
22. This very set of evidence i.e. search memo Ext. PW-
3/D, rukka Ext. PW-4/A, FIR Ext. PW-7/A and the special report Ext. PW-4/C as well as testimonies of PW-3 Const. Krishan Chand of and PW-4 ASI Hem Raj leave no manner of doubt that charas weighing 2.500 kgs. was recovered from a green coloured rt polythene bag i.e. rucksack (bag) Ext. P-6 which was being carried by accused Kamlesh Kumar with him. Also that charas weighing 2.200 kgs. was recovered from a polythene white coloured bag which was found to be kept in the rucksack (bag) Ext. P-2 being carried by accused Mahender Singh. The recovered charas was weighed by the I.O. and thereafter put in the same polythene bag and thereafter in the rucksacks (bags) Ext. P-6 and P-2, which were sealed in a parcel of cloth with 7-7 seals of impression "A".
23. If coming to filling up of NCB-I form, the findings recorded by learned trial Judge that two separate NCB-I forms were filled in are misconceived for the reason that no doubt in the seizure memo Ext. PW-3/D and rukka Ext. PW-4/A, there is mention of filling up of NCB-I form twice i.e. firstly after recovery of charas from the bag which was being carried by accused Kamlesh and secondly after the recovery of charas from the bag ::: Downloaded on - 15/04/2017 21:28:28 :::HCHP 18 which was with accused Mahender Singh. NCB-I form Ext. PW-
1/C also reveals that against column No. 2, name of both the .
accused numbering them as 1 & 2 i.e. 1-Kamlesh Kumar and 2- Mahender Singh, also find mention in the same form. However, it cannot be inferred from the above documentary evidence that NCB-I forms were filled in separately. Merely that the I.O. has of made reference of making entries in NCB-I form, in the seizure memo and also other documents referred to hereinabove at two rt different occasions i.e. firstly on the recovery of charas from the bag of accused Kamlesh and secondly after the recovery of charas from the bag of accused, could have not taken to infer that the NCB-I form qua recovery of charas from both the accused were filled in separately and that one set of NCB-I form is missing. True it is that the I.O. in order to rule out every doubt should have filled in NCB-I form separately, as though of late, directed by this Court in a recent judgment dated 2.8.2016 rendered in Cr. Appeal No. 332 of 2011, titled State of H.P. vs. Vijender Singh. However, such requirement of law in the given facts and circumstances should have not been given undue weight age for the reason firstly that no such guidelines were formulated for being followed by the I.Os. at the relevant time and secondly in view of cogent and reliable evidence which supports the recovery of charas from the bags accused Kamlesh and Mahender were carrying with them. Therefore, one set of ::: Downloaded on - 15/04/2017 21:28:28 :::HCHP 19 NCB-I form which is Ext. PW-1/C was filled by the I.O and both accused numbered as 1 & 2 with necessary particulars, such as .
their name, parentage and address etc. therein. Against column No. 4, the quantity of charas recovered from them has been mentioned as 4.700 grams whereas its shape like sticks (batties).
The non-mentioning of the quantity of the charas recovered from of both the accused separately in the NCB-I form in view of the discussion hereinabove is also not fatal to the prosecution case rt for the reason that in the documentary evidence, as discussed hereinabove, the total quantity of charas i.e. 4.700 grams finds mention. Even the I.O. PW-4 ASI Hem Raj has clarified this aspect of the matter in his cross-examination that no separate NCB-I forms were prepared after effecting recovery from accused Kamlesh Kumar but both recoveries were mentioned in the single NCB-I form. The I.O. even has clarified that after making recovery from accused Mahender, NCB-I form was not filled in as a whole and rather few entries were added consequent upon such recoveries in the same form.
24. PW-3 Const. Krishan Chand has taken the rukka Ext.
PW-3/D to the Police Station. It is thereafter FIR Ext. PW-7/A was registered. All the documents prepared before registration of the case find mention of the number of FIR in red ink.
25. The production of parcels containing case property along with sample of seal "A" and NCB-I form in triplicate stands ::: Downloaded on - 15/04/2017 21:28:28 :::HCHP 20 proved from the perusal of daily diary rapat Ext. PW-2/B and also from the testimony of I.O. PW-4 ASI Hem Raj as well as that of .
the SHO Tej Ram (PW-7). Not only this, such evidence, if available on record, also substantiate the prosecution story qua resealing of the case property by SHO Tej Ram (PW-7) with 3-3 impressions of seal "T". The impression of seal "T" has also of been drawn and the same is Ext. PW-7/B. PW-1 HC Ram Krishan is MHC. It is with whom the SHO Tej Ram (PW-7) has entrusted rt the sealed parcels containing the recovered charas along with the NCB-I form in triplicate, sample of seals "A" and "T" and also the copy of seizure memo. He had received the same and entered at Sr. No. 48 of the malkhana register. The extract of such entries is Ext. PW-1/A. The parcels of case property were deposited with PW-1 Ram Krishan on 22.3.2010. The same were forwarded by him to Forensic Science Laboratory on 22.3.2010 through PW-5 Constable Inder Dev vide RC No. 90 of 2010 Ext.
PW-1/B. The case property was received in the laboratory on 23.3.2010 as per the endorsement encircled red at point 'A' on the R.C. This aspect of the prosecution case finds support from the testimony of PW-1 MHC Ram Krishan and also PW-5 Constable Inder Dev. Now, if coming to the report of Forensic Science Laboratory Ext. PW-8/A, two parcels sealed with seals "A" and "T" along with samples of seals and NCB-I form were received in the laboratory. Merely that in the report against ::: Downloaded on - 15/04/2017 21:28:28 :::HCHP 21 column No. 7, there is mention that parcels were marked as 1 & 2, is again not fatal to the prosecution case.
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26. Above all, both the accused have been numbered as 1 & 2 in the NCB-I form as noticed, hereinabove. The I.O. may have numbered the parcels also as 1 & 2, however, omitted to make mention thereof in the documentary evidence i.e. seizure of memo and recovery memo etc. Such a lapse, in our opinion, is not of such a serious nature so as to render the recovery of rt charas from the accused doubtful. At the most, it is a procedural lapse and also is the result of faulty investigation. If coming to the result of the chemical analysis, the report Ext. PW-8/A reveals that the exhibits 1 & 2 which were sent for chemical analysis were found containing the extracts of cannabis and as such were samples of charas.
27. The non-mentioning of some specific marks on the parcels has also weighed with learned trial Judge, as in his opinion, without there being any such marks, it cannot be inferred as to which parcel contained the charas recovered from accused Kamlesh Kumar and which parcel from accused Mahender Singh. We, however, are not in agreement with such findings recorded by learned trial Judge also for the reason that the charas recovered from accused Kamlesh was 2.500 kgs.
whereas from accused Mahender Singh, 2.200 kgs. In the Forensic Science Laboratory when both the exhibits were ::: Downloaded on - 15/04/2017 21:28:28 :::HCHP 22 weighed, the same were found to be 2.188 kgs & 2.492 kgs which is 12 grams short so far as charas recovered from accused .
Mahender Singh and 8 grams short from accused Kamlesh. Such minor variation in weight on account of weighing the same at two different occasions and with two different set of scales and weights, is bound to occur. Therefore, the report of chemical of examiner also indicate the separate quantity of charas, sealed in the parcels hence, it would not be improper to conclude that the rt exhibits sent for analysis i.e. 2.188 kgs in weight was the charas recovered from accused Mahender Singh whereas 2.492 kgs.
from accused Kamlesh Kumar. The law laid down by a Single Bench of this Court in Rakesh Kumar vs. State of H.P. 2005 (2) Sim. L.C. 332 relied upon by learned trial Judge is not applicable in this case and rather in the given facts and circumstances of the case, distinguishable.
28. True it is that a suggestion was given on behalf of accused to the prosecution witnesses i.e. PW-3 Const. Krishan Chand and PW-4 ASI Hem Raj that one ITBP jawan was brought to the Police Station, Sadar Kullu as he allegedly had teased the wife of one 'rehriwala' on 21.3.2010 and that the compromise was arrived at and accused Kamlesh was associated as one of the signatory thereto. The SHO Tej Ram (PW-7) though had admitted that one ITBP jawan was brought to Police Station, however, as per his version not in connection with some ::: Downloaded on - 15/04/2017 21:28:28 :::HCHP 23 complaint against him qua teasing wife of 'rehriwala' rather on account of there being an altercation of that jawan with the .
police personnel in the hospital. As per his further version, a compromise was effected and written at the Police Station. He also made the statement while in the witness box as PW-7 that he can produce the said compromise before the Court during the of course of trial. Therefore, he was examined by the accused in their defence as DW-1. In his examination-in-chief as DW-1, he rt expressed his inability to produce that compromise as according to him, no such record was available in the Police Station. The suggestion that the compromise is available, however, he has withheld the same was denied, being wrong. In his cross-
examination conducted on behalf of accused Swaru Ram, he expressed his inability to tell that accused Kamlesh was one of the marginal witness to the compromise, however, the suggestion that he is withholding the said document from the Court initially and that all the accused were present in the Police Station as they were brought there for interrogation regarding some unclaimed bag, have been denied by this witness, being wrong. Interestingly enough, the suggestions, so given, amply demonstrate that all the accused were brought by the police to the Police Station and present there, however, in connection with their interrogation regarding unclaimed bag is a false plea raised only during the cross-examination of SHO Tej Ram (PW-7) ::: Downloaded on - 15/04/2017 21:28:28 :::HCHP 24 aforesaid, because no such suggestion was given to PW-3 Const.
Krishan Chand and the I.O. PW-4 ASI Hem Raj during their cross-
.
examination. The accused belong to Mandi district and if it is believed that there was some unclaimed bag, it was at Kullu.
Where was the occasion to the police to have called them for interrogation in connection with that bag. Therefore, the plea of the accused raised in their defence is hardly of any help to them and rather implicates them in the commission of the offence.
29. rt This Court is oblivious to the legal principle that in a case of this nature, where there is stringent provision qua punishment of offenders, if held guilty, the Court must look forward for cogent and reliable evidence and the prosecution is under obligation to prove its case beyond all reasonable doubt.
This Court is also alive to the legal principle that more serious is the offence, the stricter degree of proof is required to hold the offender guilty. However, in view of the evidence discussed hereinabove, we find the present a case where the prosecution has proved its case against accused beyond all reasonable doubt. The findings hereinabove recorded by us on re-appraisal of the evidence available on record, brings this case out of the purview of the judgment of the apex Court in Noor Aga vs. State of Punjab, (2008) 16 SCC 417, relied upon by learned trial Judge to form an opinion that the evidence produced by the prosecution is not cogent and reliable and that the same rather ::: Downloaded on - 15/04/2017 21:28:28 :::HCHP 25 suffers from discrepancies as well as contradictions. We rather find the present a case where the prosecution has been able to .
bring guilt home to accused Kamlesh and accused Mahender Singh with the help of cogent and reliable evidence. The minor discrepancies and procedural irregularities, as we noticed hereinabove, neither goes to the very root of the prosecution of case nor can be treated fatal to it. As a matter of fact, the present at the most, can be said to be a case of faulty rt investigation, hence does not render prosecution story doubtful.
The testimonies of both the witnesses i.e. PW-3 Const. Krishan Chand and PW-4 ASI Hem Raj are consistent and corroborate the entire prosecution case. Mere confusion that which of the bag was being carried by which of the accused, as highlighted hereinabove, is also of no help to the accused for the reason that the documentary evidence and also the testimony of PW-4 ASI Hem Raj, the I.O amply demonstrate that bag Ext. P-6 was being carried by accused Kamlesh whereas bag Ext. P-2 by accused Mahender Singh. Both the bags, when taken out from the parcels, were found to be green (military) coloured and creamish in colour. The prosecution case is also that accused Kamlesh was carrying military coloured bag i.e. green and accused Mahender Singh was carrying cream coloured bag.
30. The prosecution has been able to prove the recovery of charas weighing 2.500 kgs. from the exclusive and conscious ::: Downloaded on - 15/04/2017 21:28:28 :::HCHP 26 possession of accused Kamlesh whereas 2.200 kgs. from that of accused Mahender Singh. Therefore, it was for the accused .
persons to have explained their innocence as envisaged under Section 35 and 54 of the Act. The present, as such, is a case where presumption as envisaged under Sections 35 and 54 of the Act has to be drawn against accused and as they failed to of explain their innocence, hence on this score also, it would not be improper to conclude that the charas weighing 2.500 kgs and rt 2.200 kgs. has been recovered from their exclusive and physical possession. The findings to the contrary, as recorded by learned trial Judge, are neither legally nor factually sustainable.
31. Now if coming to the involvement of accused Swaru Ram in the commission of offence punishable under Section 29 of the NDPS Act, no evidence is forth coming to show that the said accused has abetted the commission of offence punishable under Section 20 of the NDPS Act by his co-accused Kamlesh Kumar and Mahender Singh. As a matter of fact, in order to bring the guilt home to an accused for the commission of offence under Section 29 of the NDPS Act, some positive evidence to show that all the accused conspired with each other and as a result of such conspiracy, abetted the commission of offence under the Act, can be said to have committed the offence punishable under Section 29 of the Act. In the case in hand, the I.O., PW-4 ASI Hem Raj, in his examination-in-chief, has not ::: Downloaded on - 15/04/2017 21:28:28 :::HCHP 27 uttered even a single word that any such evidence with regard to meeting of mind having taken place in this matter and all the .
accused conspired with each other and as a result thereof, accused Swaru Ram agreed to accompany them to arrange for a buyer, to whom his co-accused could have sold the charas in their possession. True it is that in the cross-examination of this of witness and also constable Krishan Chand PW-3, all the three accused during the course of their interrogation had canvassed rt that accused Swaru Ram agreed to arrange for a buyer so that his co-accused could sell the charas in their possession and for that his co-accused had agreed to pay Rs. 2,000/- to him. The I.O. in his cross-examination conducted on behalf of the accused Swaru Ram has admitted that no statement in this regard was recorded during the course of the investigation. Had it been so, it is not understandable as to what prevented the I.O. PW-4 ASI Hem Raj from recording such confession, if made by the accused persons. Learned trial Judge has also taken into consideration the provisions contained under Section 10 of the Indian Evidence Act, 1872 and also the case law attracted in such a situation.
Therefore, in our opinion, the findings so recorded, call for no interference in the present appeal.
32. A perusal of the evidence available on record and also the given facts and circumstances as well as law cited at the Bar, make it crystal clear that the present is not a case where it ::: Downloaded on - 15/04/2017 21:28:28 :::HCHP 28 can be said that the prosecution has failed to prove its case against accused Kamlesh Kumar and Mahender Singh, beyond all .
reasonable doubts. No doubt, the witnesses are police officials, because as rightly observed by learned trial Judge, it was not possible to associate independent person as witness being odd hours of the night. However, the evidence as has come on of record by way of testimony of official witnesses is consistent, categoric, cogent as well as reliable. The prosecution, as such, rt has discharged the onus to prove that the charas has been recovered from the exclusive and conscious possession of accused Kamlesh Kumar and Mahender Singh. As already observed, the present is a fit case where the presumption as envisaged under Section 35 and 54 of the Act can also be drawn against the accused because onus to prove otherwise that they were neither apprehended nor charas recovered from them stood shifted on them.
33. Both the accused, the residents of District Mandi have failed to explain as to what they were doing at Khalara-
nullah and that too in odd hours during the night intervening 21/22.3.2010. The trend of the cross-examination of the prosecution witnesses and also that of DW-1 reveal that on that day, they were present in the Police Station. Why they would have been called from their native place in district Mandi for interrogation in connection with recovery of the so called ::: Downloaded on - 15/04/2017 21:28:28 :::HCHP 29 .
unclaimed bag also remained unexplained. The accused, as such, have failed to discharge the onus upon them. Therefore, in view of the ratio of the judgment of the Hon'ble Apex Court in Noor Aga's case (supra), the presumption under Sections 35 and of 54 of the Act is drawn against both of them. It being so, the only inescapable conclusion would be that the commission of offence punishable under Section 20 of the Act is proved against accused rt Kamlesh Kumar and accused Mahender Singh. They are, therefore, convicted accordingly. However, no case for the commission of offence punishable under Section 29 of the Act is made out against accused Swaru Ram. The findings of his acquittal as recorded by learned trial Judge are thus upheld. His personal bond is cancelled and surety discharged.
34. Convict Kamlesh Kumar and convict Mahender Singh, however, to surrender to their bail bonds and appear before this Court on 17.11.2016 at 10:00 AM for being heard on the quantum of sentence. Learned counsel representing the convicts submits that it may not be possible for him to contact them and ensure their presence in this Court on the date fixed.
Being so, issue production warrants against convict Kamlesh Kumar and convict Mahender Singh for the date fixed and the ::: Downloaded on - 15/04/2017 21:28:28 :::HCHP 30 Superintendent of Police, Kullu District to ensure the execution of the same upon them. List on 17.11.2016.
.
(Dharam Chand Chaudhary), Judge.
(Chander Bhusan Barowalia), of Judge.
October 28, 2016.
(karan-) rt ::: Downloaded on - 15/04/2017 21:28:28 :::HCHP