Himachal Pradesh High Court
Jagat Singh vs State Of Himachal Pradesh on 14 August, 2023
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. A. Nos. 652 & 653 of 2017 Reserved on: 09.08.2023 .
Date of decision: 14.08.2023
Cr.A. No. 652 of 2017
Jagat Singh ...Appellant
Versus
State of Himachal Pradesh ...Respondent
of
Cr.A. No. 653 of 2017
Shaveg ...Appellant
rt Versus
State of Himachal Pradesh ...Respondent
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon'ble Mr. Justice Ranjan Sharma, Judge.
Whether approved for reporting? Yes For the Appellant(s) : Mr. Rajiv Jiwan, Sr. Advocate with Mr. Vijay Panchta and Mr. Hitender Verma, Advocates, for the appellant in Cr. A. No. 652 of 2017.
Mr. Prashant Sharma, Advocate, for the appellant in Cr. A. No. 653 of 2017 For the Respondent: Mr. I. N. Mehta, Mr. Y. W. Chauhan, Sr. A. Gs. With Mr. Ramakant Sharma, Ms. Sharmila Patial, Addl. A.Gs and Mr. J. S. Guleria, Dy. A. G. Tarlok Singh Chauhan, Judge.
Since both these appeals arise out of a common judgment of conviction and sentence passed by the learned ::: Downloaded on - 14/08/2023 20:36:51 :::CIS 2 Special Judge, they were taken up together for consideration and are being disposed of by a single judgment.
2. The case of the prosecution in brief is that on .
07.07.2015 SI Ankush Dogra alongwith HC Naresh Kumar No. 86, HC Harjit Singh No. 89, HHC Jagtar Singh No. 270, HHC Mukhwant Singh No. 422, C- Vikram Singh No. 249 and HHC Rajinder No. 328, left from Police Post Tahliwal for of 'Nakkabandi' at Tahliwal Road vide Rapat No. 18. The nakka was laid at place Nangal Kalan near Rubber Tyre Factory on rt Tahliwal-Bathri road. At about 9:55 pm, a motor cycle came from Bathri side. The motorcyclist was asked by the police to stop for checking documents etc. He disclosed his name as Jagbir Rana, resident of village Palkwah, Tehsil Haroli, District Una, H.P. When the documents of motorcylce were being checked, one Maruti Swift Car of white colour bearing registration No. HP-24D-1666 came and behind this car a truck bearing registration No. HR-63-4638 was coming from Bathri side. Both these vehicles i.e. Car and Truck were stopped for the purpose of checking documents. The Swift car was being driven by appellant Jagat Singh. He disclosed that he was also the owner of the aforesaid truck and also disclosed that after unloading the goods they were going back to home at Majari, District Bilaspur, H.P. ::: Downloaded on - 14/08/2023 20:36:51 :::CIS 3
3. The further case of the prosecution is that the truck was checked by the police party and during checking of the body of the truck, they found some empty sacks (Boru) .
out of which one sack was having something in it. On opening the plastic sack, it was found to contain popply husk/chura post. Since the planks on the floor of the body of truck were fixed with nut bolts, these were got removed by using socket of wrench and upon removing the planks, it was noticed that in the empty space there is huge quantity of poppy husk that rt had been kept in plastic bags. These were taken out and counted and these were found to be 197 bags/packets.
4. HC Jagtar Singh was sent to bring an electronic balance from Tahilwal bazar and he brought the same. On weighing 197 bags of plastic total 335 Kg poppy husk was found. All the plastic bags were opened on the floor of the truck over the empty sacks. Thereafter, three samples of three Kg each were taken and marked as S-1 to S-3. The poppy husk samples were put in three different cloth parcels, each parcel was sealed with seal impression 'T. These samples were taken for the purpose of chemical analysis in the presence of Sh.
Jangbir Rana and HC Naresh Kumar. Specimen of seal 'T' was taken on piece of cloth which bears the signatures of witnesses and accused and same was attested by SI-Ankush Dogra. The remaining poppy husk was put in 15 plastic sacks ::: Downloaded on - 14/08/2023 20:36:51 :::CIS 4 and each sack was sealed with seal impression 'T'. The aforesaid sacks were marked as Mark P-1 to Mark P-15. SI-
Ankush Dogra filled NCB Forms in triplicate from column Nos.
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1 to 8 and also ED embossed seal impression 'T' thereon. The Seal 'T' after its use was handed over to PW-2 Jangbir Rana.
The recovered poppy husk along with truck bearing registration No HR 63-4638, Maruti Swift HP-24D-1666 along of with nut, bolts, Panna, documents, keys were taken into possession vide memo Ext. PW-1/B in the presence of HC rt Naresh Kumar and independent witness Jangbir Rana.
5. Thereafter, SI-Ankush Dogra scribed a rukka and send the same through HC-Jagtar Singh to Police Station, Haroli. On the basis of rukka, F.I.R is registered by SI-Sanjay Kumar. During the process of recovery, sealing and weighing C-Vikram Singh had taken photographs. Investigating Officer also prepared the spot map and recorded the statements of witnesses as per their versions. Accused were arrested. Their personal search was also conducted in the presence of aforesaid witnesses. During personal search of accused persons no Narcotic substance was found.
6. After completing spot investigation, the police party along with accused persons came to Police Station, Haroli. The aforesaid vehicles along with case property were also brought to PS, Haroli. The Investigating Officer produced ::: Downloaded on - 14/08/2023 20:36:51 :::CIS 5 the case property along with samples S-1 to S-3, NCB forms in triplicate, specimen seal impressions, copy of recovery memo before SI-Sanjay Kumar for the purpose of re-sealing. SI-Sanjay .
Kumar re-sealed the case property with seal impression 'A' and issued re-sealing certificate and filled Column Nos. 9 to 11 of NCB form and also embossed sealed 'A' thereon and after re-sealing the case property, he deposited the same with MHC of Subhash Chand. Special report was sent through HHC-Rajinder Kumar to Dy. S.P., Haroll.
7. rt On 09.07.2015, MHC-Subhash Chand sent three cloth parcels Marked as S1 to S3 along with NCB form in triplicate, specimen seal impressions A and T to SFSL, Junga through HHC- Jagtar Singh vide R.C. No. 165/15.
8. On 23.09.2015, HC-Dharam Pal No. 77 brought three parcels along with envelope containing chemical examiner's report Ext. PW-12/C and handed over the same to the M.H.C of Police Station.
9. On 13.10.2015, case property was again taken from M.H.C of Police Station for certifying the inventory by the Magistrate. After preparation of inventory, samples were again taken in the presence of Judicial Magistrate, Ist Class, Court No.1, Una, and the said samples were marked S1 to $15. HC-
Sandeep Kumar clicked the photographs during these proceedings.
::: Downloaded on - 14/08/2023 20:36:51 :::CIS 610. On 23.10.2015, these 15 samples sealed with court seal impressions marked S-1 to S-15 along with list of inventory, certificate, sample seal and copy of FIR were taken .
by HHC-Sukhwinder Singh to SFSL Junaga vide R.C. No. 249/15 dated 23.10.2015 and deposited on 26.10.2015. The report thereafter was also received showing the samples of Poppy Straw (Oplum Poppy-Papaver somniferum L.) plant species.
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11. After completing the codal formalities Inspector/ SHO Binny Minhas prepared the challan and presented the same before rt the Court. After taking cognizance and compliance of supplying documents etc. charge was framed for the commission of offence under Section 15 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
Prosecution examined 21 witnesses. Accused were examined under Section 313 Cr. P.C. They were called upon to enter into defence, however, no defence evidence was led.
12. The learned Court below after hearing the arguments and evaluating the oral and documentary evidence, convicted and sentenced appellant Jagat Singh to undergo rigorous imprisonment for a term of ten years and to pay a fine of Rs. One lac and in case of non-payment of fine to further undergo rigorous imprisonment for three years under Section 29 read with Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the 'Act') and the ::: Downloaded on - 14/08/2023 20:36:51 :::CIS 7 appellant Shaveg Singh was convicted and sentenced to undergo rigorous imprisonment for a term of ten years and to pay a fine of Rs. One lack and in case of non-payment of fine .
to further undergo rigorous imprisonment for three years under Section 15 of the Act.
13. It is vehemently contended by Shri Rajiv Jiwan, learned Senior Advocate, representing the appellant Jagat of Singh in Criminal Appeal No. 652 of 2017, that this appellant has wrongly been convicted under Section 29 of the Act as rt there is no evidence whatsoever led by the prosecution to establish that there is a criminal conspiracy or that the appellant had abetted the crime.
14. Shri Prashant Sharma, learned counsel for the appellant Shaveg Singh in Criminal Appeal No. 653 of 2017, would argue that this appellant has been falsely implicated in the instant case as it was a case where the prosecution had prior information and the prosecution case deserves to be dismissed for want of compliance under Section 42 of the Act.
15. On the other hand, I. N. Mehta, learned Senior Additional Advocate General, would argue that since the case has been established to the hilt, therefore, the learned Special Judge has rightly sentenced and convicted both the appellants and the same calls for no interference.
::: Downloaded on - 14/08/2023 20:36:51 :::CIS 816. In order to appreciate the aforesaid arguments, it would be necessary to have a cursory look on the evidence that has come on record.
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17. Shri Jangbir Singh Rana, the so-called independent witness has been examined as PW-2, who has not supported the prosecution case and was declared hostile. In his examination-in-chief, he stated that he had forgotten the date of and month. While coming back from his in-laws house, on seeing the police party, he had stopped his motorcycle but no rt nakka had been laid by the police at place Bathri road near Rubber Tyre Factory. He further claimed that no documents were demanded by the police party and he further claimed that no car or truck was coming from behind him. It was, at this stage, he was declared hostile and was permitted to cross-examine by the prosecution.
18. In cross-examination, he stated that he was matriculate and that the police had obtained his signatures on recovery memo Ext. PW-1/B. He stated that he was a shopkeeper as well as Transporter. When he was cross-
examined regarding the recovery of contraband, he denied, but ultimately when confronted with photographs Mark N-1 to N-20, he acknowledged his presence as reflected in photographs N-4, N-5, N-9, N-12 and N-18. This witness partly admitted the case of the prosecution with regard to the ::: Downloaded on - 14/08/2023 20:36:51 :::CIS 9 specimen seal that was taken on the piece of cloth Ext. PW-
1/A and acknowledged his signatures thereupon. He also admitted that 15 sacks Ext. P-10 to Ext. P-24, sample parcels .
Ext. P-1 to xt. P-3, a specimen seal impression Ext. PW-1/A, documents of Car, truck, nut, bolts and panna were also taken into possession vide recovery memo ext. PW-1/B in his presence, which bears his signatures in red circle. He of thereafter admitted that the appellants were present there at the time of recovery.
19. rt However, when he was cross-examined by the appellants, he changed the stand that the police called him from his shop Tahilwal at around 5:30 pm. He further stated that no car was standing. However, 2-3 trucks were there. He further stated that Ext. P-1 to Ext P-3 and Ext. P-10 to Ext. P-
24 were prepared at Police Post Tahilwal. He further stated that he put his signatures Ext. PW-1/B without going through the contents thereof. The prosecution was given an opportunity to re-examine this witness at this stage and he admitted that the police had not pressurized him to sign the documents. He stated that even he was asked to put his signatures on the documents, he will not go through the documents and would put his signatures.
20. PW1 HC Naresh Kumar, was a member of police party and supported the manner of laying 'Nakka' and arrival ::: Downloaded on - 14/08/2023 20:36:51 :::CIS 10 of the independent witness PW-2 Shri Jangbir Rana and also supported the claim of the prosecution regarding stopping of the car bearing registration No. HP-24D-1666 coming behind .
truck No. HR-63-4638 at around 9:55 p.m. He further stated that it was the appellant Jagat Singh, who disclosed his name and also told that the truck No. HR-63-4638 following car also belonged to him and they were going to the house after of unloading the goods. He further deposed that the truck was stopped and it was checked by the police officials and in the rt body of the truck one plastic sack was lying there having weight and some empty plastic sacks were also there. On opening of the plastic sack, which contained something, it was found to be containing poppy straw and on suspicion the 'phatas' of the floor of the body of the truck which were fixed with nut and bolts were removed with the help of 'panna' i.e. spanner and in total 197 plastic bags weighing 335 Kg poppy straw were found. He further stated that all the plastic bags were opened and recovered poppy straw was made homogeneous. Thereafter, three samples of three (3) Kg each were taken. The samples of poppy straw were packed in three different cloth parcels and sealed with seal impression 'E'. The sample of seal 'T' was taken at the spot.
21. Even though this witness has been cross-
examined at length but nothing material could be extracted ::: Downloaded on - 14/08/2023 20:36:51 :::CIS 11 from his statement, save and except, that he had stated that the plastic bags were not jointly weighed i.e. hardly material for the decision of the instant case.
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22. PW 3 HHC Jagtar Singh deposed about the arrival of car and truck around 9:55 p.m. He also supported the recovery, bringing electronic balance from Dilawar Singh (PW-
9), making of the contraband homogeneous, sealing of S-1 to of S-3 and remaining contraband S-1 to S-15 with the seal of letter 'T'. He also stated that he had taken rukka and handed rt over to MHC Subhash Chand. He further stated that on 09.07.2015, MHC Subhash Chand had handed over to him specimen parcel Mark S-1 to S-3, which were sealed with seal 'T' and 'A' and NCB form for chemical analysis, which he had deposited with SFSL.
23. PW4 HHC Vijay Singh has proved that report under Section 57 of the Act Ext PW-4/A was handed over to him by Shri Amit Sharma, SDPO, Haroli and he had made an entry in the Register though he stated that in his register at serial No. 5, there is a reference of receipt of report under Section 42 of the Act. Even though this witness stated that in Serial No. 5 of the Register there is a reference of receipt of report under Section 42 of the Act and stated that he had not seen any reasons or belief under Section 42 of the Act. However, this part of the statement is neither material nor can the defence ::: Downloaded on - 14/08/2023 20:36:51 :::CIS 12 take any advantage for the simple reason that it is a case of chance of recovery and not of prior information.
24. PW5 HHC Joginder Kumar is a formal witness.
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25. PW6 C. Bikram Singh, has supported the case of the prosecution and deposed about the arrival of Jangbir Rana (PW-2). Thereafter, a car being driven by appellant Jagat Singh and truck being driven by the other appellant Shaveg Singh.
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rt 6/A-20 with police camera. He has categorically denied the suggestion of the defence regarding the case being one of prior information.
26. PW7 HHC Rajinder Kumar, took the special report under Section 57 of the Act to the Dy. S.P., Haroli i.e. Ext. PW-
4/A.
27. PW8 C. Suresh Kumar has proved the general diary entry Ext. PW-8/A regarding SI Ankush Dogra reaching back in Police Station alongwith the other police officials, case property, truck and car as well as accused persons. He also entered another report Ext. PW-8/B qua re-sealing proceedings and had issued certificate under Section 65D of the Indian Evidence Act Ext. PW-8/C. In his cross-examination, he admitted that these GDRs Ext. PW-8/A to Ext. PW-8/C were ::: Downloaded on - 14/08/2023 20:36:51 :::CIS 13 entered on the dictation of reporting officer of police including time.
28. PW9 Sh. Dilawar Singh is a shopkeeper, who .
stated that on 07.07.2015, HHC Jagtar Singh came to him at around 5 to 5:30 pm and took an electronic balance.
29. PW10 C. Sucha Singh deposed that on 11.10.2015, he was associated in the investigation by the Investigating of Officer as inventory was required to be prepared and recovered case property was to be weighed so he had brought rt the weighing scale and weighed 15 sacks Mark P-1 to Mark P-
15, which were sealed with seal impression 'T' and re-sealed with the seal of letter 'A'. Its weight was recorded separately and inventory list was prepared and thereafter he returned the electronic balance to Dilawar Singh.
30. PW11 HC Dharam Pal No. 77 stated that he on 22.09.2015 brought the result and three parcels, which were sealed with seal of FSL at four places and also seal impressions 'T' and 'A'.
31. PW12 HC Subhash Chand was then MHC of Police Station, Haroli, who deposed that on 08.07.2015, SI Sanjay Kumar has deposited case property with him alongwith NCB form in triplicate, specimen seal impressions 'T' and 'A', three cloth parcels sealed with seal impressions 'T' and 'A' at seven places each, truck No. HR-63-4638 and Swift Car No. HP-24D-
::: Downloaded on - 14/08/2023 20:36:51 :::CIS 141666 alongwith its keys and nut & bolts etc. This case property was in the shape of 15 sacks and he had made entry at serial No. 736 in register No. 19. He sent the cloth parcel S1 .
to S3 alongwith NCB form through HHC Jagtar Singh and proved the abstract of Malkhana register Ext. PW-12/A and R.C. Ext. PW12/B. He further stated that on 23.09.2015, HC Dharam Pal, No. 77, brought three parcels alongwith an of envelope containing chemical examiner's report Ext. PW-12/C which revealed the samples as that of opium poppy (papaver rt somniferum L.). He also deposed that on 13.10.2015, the case property was again taken up from him by HHC Swaran Singh for preparation of inventory. Inventory Ext. PW-12/D was prepared and signed by him as well as ASI Pritam Singh.
32. It needs to be noticed that the inventory was certified by JMIC (PW-21) vide proceedings Ext. PW-21/B and the certificate was issued by him Ext. PW-21/B. The material i.e. sealed in 15 sacks found intact having seals of letters 'T' and 'A' and samples were drawn after making the packets homogeneous and 1/2 kg sample each was drawn from each packet out of 15 packets. The case property and samples were thereafter sealed with the Court seal. The photographs were also taken of these proceedings. These samples thereafter were sent to SFSL and these were found to be poppy straw vide report Ext. PW-12/G. ::: Downloaded on - 14/08/2023 20:36:51 :::CIS 15
33. PW 13 HC Sandeep Kumar had taken photographs at the time of preparing of the inventory proceedings Ext. PW-
13/A-1 to Ext. PW-13/A-12. He has sent the samples so drawn .
before the Magistrate to SFSL through HHC Sukhwinder Singh.
34. PW 14 HHC Sukhwinder Singh had taken the samples at the time of certifying the inventory alongwith copy of inventory, certificate and sample seal to SFSL, Junga.
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35. PW 15 SI Sanjay Kumar had drawn the FIR Ext.
PW-15/B on receipt of rukka Ext. PW-15/A. SI Ankush Dogra rt (PW-17) had produced the case property i.e. 15 sacks sealed with seals of letter 'T' and three samples bearing seal impression 'T' alongwith NCB form, and resealed the case property and samples with seal of letter A'. Separate seal impression Ext. PW-15/D was taken. He filled the column Nos.
9 to 11 of NCB forms in triplicate i.e. Ext. PW-15/C.
36. PW 16 SI Pritam Singh moved an application for preparation of inventory when further investigation was assigned to him for attestation of inventory and to draw the samples before Judicial magistrate 1st Class, Court No. 1 Una.
37. PW 17 SI Ankush Dogra, investigated the case and fully supported the same. In his cross-examination, he has categorically denied that SDPO, Haroli was having prior information that is why he had laid nakka. He also admitted that he had not given any information.
::: Downloaded on - 14/08/2023 20:36:51 :::CIS 1638. PW 18, Inspector Binny Minhas, prepared the inventory of seized material which was then produced by ASI Pritam Singh before the Judicial Magistrate on 13.10.2015. He .
had also recorded the statement of relevant witnesses and after receiving chemical examiner's report had filed the challan.
39. PW19 HHC Sawaran Singh had brought the case of property at the time of certifying the inventory.
40. PW20, Harnam Singh stated that his electronic rt weighing scale was required by the police in the morning time.
It was thus proved to be taken at the time of preparation of inventory.
41. PW21 Gaurav Kumar, the then Judicial Magistrate, 1st Class, Court No. 1, Una has certified the entry and deposed that he had checked and weighed the contraband Ext. PW-
12/D and there was minor difference in the weight, which may have been due to transportation and weighing the same over different scales. He further deposed that the sample of half kilogram from each sack after making the packets inside the sacks homogeneous were drawn and sealed with the court seal. The sacks were also re-sealed with court seal.
This in entirety is the case of the prosecution.
42. Adverting to the appeal (Cr. A. 652 of 2017), filed by Jagat Singh, the sole argument raised on his behalf by Shri ::: Downloaded on - 14/08/2023 20:36:51 :::CIS 17 Rajiv Jiwan, learned Senior Advocate, is that pre-requisites of Section 29 have not been fulfilled, therefore, the conviction cannot be sustained.
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43. It is not in dispute that the primary charge as framed against this appellant was:
"That on 742015 at 955 PM on Tahliwal-Bathri road near Rubber Tyre Factory, Nangal Kalan within the jurisdiction of Police Station Haroll you accused of was coming in vehicle Maruti Swift Car No.HP-24D- 1668 and were escorting your truck No.HR-63- 4638 in which 335 kg Poppy husk/straw was being rt transported under your direction by your co-
accused Shaveg Singh and Bhanu Raou and thereby you committed an offence punishable under Section 29 read with Section 15-61-85 of the Narcotic Drugs & Psychotropic Substances Act and within the cognizance of this court."
44. Since the appellant has been convicted under Section 29 of the Act, it shall be apt to reproduce the said provisions, which reads as under:-
29. Punishment for abetment and criminal conspiracy.
(1) Whoever abets, or is a party to a criminal conspiracy to commit an offence punishable under this Chapter, shall, whether such offence be or be not committed in consequence of such abetment or in pursuance of such criminal conspiracy, and notwithstanding anything contained in section 116 of the Indian Penal Code (45 of 1860), be punishable with the punishment provided for the offence.::: Downloaded on - 14/08/2023 20:36:51 :::CIS 18
(2) A person abets, or is a party to a criminal conspiracy to commit, an offence, within the meaning of this section, who, in India abets or is a party to the criminal conspiracy to the commission of any act in a .
place without and beyond India which-
(a) would constitute an offence if committed within India; or
(b) under the laws of such place, is an offence relating to narcotic drugs or psychotropic substances having all the legal conditions of required to constitute it such an offence the same as or analogous to the legal conditions required to constitute it an offence punishable under this rtChapter, if committed within India.
45. As per the aforesaid Section, whoever abets or is a party to the criminal conspiracy to commit an offence punishable under this Chapter, shall also be punishable with the punishment provided for the officence. In order to establish the charge under this Section, the prosecution is required to establish that the accused had either abetted or entered into a criminal conspiracy with his co-accused for the commission of the offence under this Chapter. The abetment has been defined in Section 107 of the Indian Penal Code.
46. According to this Section, a person abets the doing of a thing, who-
Firstly - instigates any person to do that thing; or secondly - engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal, omission takes place in ::: Downloaded on - 14/08/2023 20:36:52 :::CIS 19 pursuance of that conspiracy, and in order to the doing of that thing; or thirdly - intentionally aids, by any act or illegal omission, the doing of that things.
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47. Thus, in order to constitute a criminal conspiracy, it is essential for the prosecution to establish;
(I) an agreement between two or more persons;
(ii) an agreement must relates to doing or causing to be of done either;
(a) an illegal act;
rt(b) an act which is not illegal in itself but is done by illegal mean.
48. So, in order to bring home the guilt of the offence punishable under Section 29 of the Act, the prosecution in this case was required to establish the aforesaid ingredients, but unfortunately no such evidence has been collected or adduced by the prosecution.
49. To establish the ingredients of conspiracy, it is necessary to show that there was an agreement to do an illegal act and/or an agreement to do legal act by illegal mean, a physical manifestation of the act must follow the common meeting of mind.
50. However, Shri I. N. Mehta, learned Senior Additional Advocate General for the State, would vehemently argue that since the appellant Jagat Singh was escorting the truck as owner of the truck being driven by the appellant ::: Downloaded on - 14/08/2023 20:36:52 :::CIS 20 Shaveg, therefore, no further proof of abetment of criminal conspiracy is required to be established by the prosecution.
51. However, we find no merit in such contention, as .
there is no evidence led by the prosecution to establish the so-called conspiracy. It needs to be noticed that the prosecution has led no evidence whatsoever regarding criminal conspiracy and as regards the evidence regarding the of presence of both the accused at the same place, the same by itself cannot be taken to be an evidence to suggest that there rt was any criminal conspiracy between the two, as held by Hon'ble Supreme Court in Amar Singh Ramjibhai Barot vs. State of Gujarat (2005) 7 SCC 550.
52. It shall be apt to reproduce the relevant observations, which read as under:-
7. The learned counsel appearing for the appellant urged only one contention in support of the present appeal. He contended that the High Court fell into an error in taking the total quantity of the offending substances recovered form the two accused jointly and holding that the said quantity was more than the commercial quantity, warranting punishment under Section 21(c) of the NDPS Act. He contended that as far as the appellant is concerned, the High Court erred by assuming that there was criminal conspiracy within the meaning of Section 29 of the NDPS Act, and erroneously proceeded under the said section. The High Court fell into a further error of assuming that because Section 29 was applicable, the total quantity of opium recovered was 920 grams plus 4.250 kgs. The ::: Downloaded on - 14/08/2023 20:36:52 :::CIS 21 counsel urged that because of this error the High Court took the wrong view that the total recovered opium was of ``commercial quantity'' and, therefore, attracted Section 21(c) of the NDPS Act.
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8. Although, at first blush, the argument of the learned counsel appeared attractive, on careful appreciation of the facts on record we are satisfied that the High Court judgment is fully justified and needs to be upheld. It is true that the High Court proceeded on the footing that there was a criminal conspiracy between the appellant of and the deceased, Danabhai Virabhai Rabari. In our view, however, there was no warrant for this conclusion at all as there is no evidence to suggest that there was rt any such abetment and/or criminal conspiracy within the meaning of Section 29 of the NDPS Act. The appellant and Danabhai Virabhai Rabari were found together, but individually carrying the recovered substances. Hence, it was not possible for the High Court to take the view that Section 29 was attracted.
53. There has to be cogent and convincing evidence against each of the accused charged with the offence of conspiracy and the mere presence of the accused persons at the spot, by itself is not sufficient to establish the ingredients of Section 29 of the Act, as held by Hon'ble three judges Bench of the Hon'ble Supreme Court in State vs. Nalini (1999) 5 SCC 253, wherein it was held as under:-
584.Having thus held that the object of the conspiracy was to kill Rajiv Gandhi; that no offence under Sections 3 or 4 of TADA had been committed and after having considered the principles regarding the ingredients of criminal conspiracy; appreciation of evidence in a case ::: Downloaded on - 14/08/2023 20:36:52 :::CIS 22 of conspiracy; submissions of Mr. Natarajan that he is not challenging the convictions and sentence passed on the accused under the provisions of the Arms Act, Explosives Substance Act, Indian Wireless and Telegraphy .
Act, Passport Act, Foreigners Act and Sections 201, 212 and 216 IPC, we proceed to consider as to whether all or any one of the accused before us were members of the criminal conspiracy, still keeping in view the following aspects:-
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1. Presence of LTTE on Indian soil before and after Indo-Sri Lankan Accord is undisputed. Its activities went ostensibly underground after the Accord.
rt LTTE was having various activities in India and some of these were (1) printing and publishing of books and magazines for LTTE propaganda, (2) holding of camps for arms training in India and various other places in Tamil Nadu (This was done openly till the Indo-Sri Lankan Accord), (3) collection and raising of funds for its war efforts in Sri Lanka, (4) treatment of injured LTTE cadres in India, (5) medical assistance and (6) transporting of goods like petrol, diesel, lungies, medicines, wireless equipments and explosives and even provisions to Sri Lanka.
2. Hiring of houses in Tamil Nadu was for various activities of the LTTE, which included houses for the treatment of injured LTTE cadres.
3. Sivarasan was having other activities in Tamil Nadu. He was to make arrangements for Santhan (A-2) to go to Switzerland and for Kangasabapathy (A-7) and Athirai (A-8) to go to Delhi and from there to Germany. He was to make arrangement to recruit persons to impart arms training in Sri Lanka through Ravi (A-16) and Suseendran (A-17) ::: Downloaded on - 14/08/2023 20:36:52 :::CIS 23 and to arrange houses at Madras through Robert Payas (A-9), Jayakumar (A10) and Vijayan (A-12) for the stay of LTTE cadres not necessarily for conspirators. He financed Vijayanandan (A5) in .
Madras for purchase of books for LTTE library in Jaffna. Shanmugham (DA) in his confession (Exh.P- 1300) stated that Sivarasan with others stayed in a house at Kodiakkarai and they were arranging to send petrol and diesel oil by boat to LTTE in Sri Lanka.
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4. In case of some of the accused including deceased accused there is no evidence whatsoever that they were members of the rt conspiracy. Prosecution has been unfair to charge them with conspiracy.
5. There is no evidence that all the nine persons, who arrived in India by boat on 1.5.1991, namely, Sivarasan, Subha, Dhanu, Nero, Dixon, Santhan (A-2), Shankar (A-4), Vijayanandan (A-5) and Ruben (A-6), were members of the conspiracy. In this group there was Ruben (A-6), who came to India to have an artificial leg fixed which he had lost in a battle with Sri Lankan army.
6. Prosecution also named Jamuna @ Jameela (DA) as a conspirator, who had also come to India for fixing an artificial limb, which she had also lost in a battle with Sri Lankan army. There is not even a whisper in the whole mass of evidence that she had even knowledge of any conspiracy to kill Rajiv Gandhi. Simply because she was found dead having committed suicide along with Sivarasan, Subha and others at Bangalore, could not make her a member of the conspiracy.
::: Downloaded on - 14/08/2023 20:36:52 :::CIS 247. From frequent and unexplained meetings of some of the accused with others, who have been charged with conspiracy, it cannot be assumed that they all were members of the conspiracy. This .
is particularly so when LTTE was having various activities on Indian soil for its war efforts in Sri Lanka. Notebook (Exh.P-1168) seized by the police gives bio-data of some LTTE cadre working in India though that list is not extensive. It also contains the bio-data of Irumborai (A-19).
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8. All the persons, who came from Sri Lanka during the strife, did not come through authorized channels. It is also to be seen if the accused now rt charged with conspiracy and alleged to have come to India in the guise of refugees were not in fact refugees. Rather evidence shows that Robert Payas (A9), Jayakumar (A-10) and Shanthi (A-11) as one group and Vijayan (A-12), Selvaluxmi (A-
13) and Bhaskaran (A-14) as the second group, were in fact wanting to come to India due to conditions prevailing in Sri Lanka. They had no money to pay to LTTE. They were exempted from paying any toll to LTTE on their agreeing to hire houses in Tamil Nadu for stay of LTTE cadre and on their being promised help by LTTE. When they so agreed they were not aware that what was the object behind their hiring the houses. Evidence regarding providing shelter to the conspirators either before or after the object of the conspiracy has been achieved, is not conclusive to support the charge of conspiracy against them.
9. Robert Payas (A-9), Jayakumar (A-10) and Vijayan (A-12) were hard-core LTTE activists. They were living in Sri Lanka with their families and suffered because of the turmoil there. They may ::: Downloaded on - 14/08/2023 20:36:52 :::CIS 25 be sympathizers of LTTE having strong feelings against IPKF. Consider the background in which they accepted the offer of LTTE to meet their expenses in India. It could be that they .
themselves felled into the trap because of the circumstances in which their families were placed in Sri Lanka and the conditions prevailing there.
54. As observed above, even from the frequent and of unexplained meeting some of the accused with the others were charged with the conspiracy, it was held that it cannot be assumed that they all were members of the conspiracy.
rt
55. Furthermore, for inferring the act of hatching conspiracy under Section 29 of the Act on part of the petitioner Jagat Singh and Shaveg co-accused, there had to be a positive evidence about an agreement to do an unlawful act or to do lawful act by unlawful means and such agreement must precede with the meeting of minds so as to infer the case of conspiracy against appellant Jagat Singh. Once there is absence of material on record regarding such meetings or minds with the Shaveg Singh, who was driving the truck from where the contraband articles have been recovered, the appellant Jagat Singh cannot be convicted under Section 29 of the Act and eventually fasten with the conviction of the substantive offence of under Section 15 of the Act.
56. Furthermore, here the conduct of the appellant Jagat Singh is also required to be seen. It would be noticed ::: Downloaded on - 14/08/2023 20:36:52 :::CIS 26 that there was no attempt on the part of this appellant to flee from the vehicle and he was apprehended by the police party and had there been any culpable mental state, he would have .
definitely tried to escape.
57. No doubt, the persons indulging in illegal trafficking and contraband drugs and psychotropic substance, must be dealt with iron hands as their activities have been of widespread deleterious effect on the society at large where countless members of the society more often than not of rt tender age are falling prey to such heinous and nefarious activities. However, then decision in each case will depend on the facts of the case and no principle of law can be applied blindly and has to be applied to the given facts and circumstances. Having failed to establish in the given facts, we have no option but to acquit the appellant Jagat Singh by setting aside the judgment rendered by the learned Special Judge.
58. Now, adverting to the case of the appellant Shaveg Singh, his entire case is based upon non-compliance of Section 42, as according to him, this was not a case of chance recovery but a case of prior information.
59. Shri Prashant Sharma, learned Advocate, would vehemently argue that the prosecution has failed to prove the alleged so-called nakka laid at police station at 9:30 pm at ::: Downloaded on - 14/08/2023 20:36:52 :::CIS 27 Tahliwal Bathri Road near Rubber Tyre Factory or else the police could not have arranged for the electronic balance scale at 5:30 pm as stated by PW-9 Dilawar Singh.
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60. He has also argued that the entire story of the prosecution regarding laying of nakka is manipulated and based on false record of the police officials.
61. It is further argued that as per the Investigating of Officer rukka was prepared on the basis of which FIR Ext.
PW15/A was registered and in the rukka itself, it has been rt mentioned that the information under Section 42 of the Act is being separately prepared and sent through HHC Mukhwant Singh No. 422 to the S.P., Una. As such, it is a fit case of prior information as is evident from the aforesaid documents and an adverse inference needs to be drawn against the prosecution for neither placing that information under Section 42 of the Act on the record nor on account of non-examining of HHC Mukhwant Singh.
62. The learned counsel for the appellant would argue that the police, in fact, had previous information of the alleged contraband being transported and the story of chance recovery was nothing but a deliberately crafted narrative to circumvent the legal safeguards under the ND&PS Act, which consequently weaken the very foundation of the prosecution case.
::: Downloaded on - 14/08/2023 20:36:52 :::CIS 2863. We have gone through the entire record and find no material placed on record so as to infer that there was any prior information rather the case is clearly one of chance .
recovery. Thus ameliorating the requirement to comply with Section 42 of the Act, as held by the Hon'ble Constitutional Bench of the Hon'ble Supreme Court in State of Punjab vs. Baldev Singh (1999) 6 SCC 172 and also in Ram Kumar of vs. Central Bureau of Narcotics(2008) (5) SCC 385.
64. Another feeble attempt has been made by the rt learned counsel for the appellant-Shaveg Singh that the link evidence in the instant case is missing, therefore, also the appellant-Shaveg Singh deserves to be acquitted.
::: Downloaded on - 14/08/2023 20:36:52 :::CIS 2965. He would argue that the prosecution has failed to prove the link evidence from the stage of seizure of contraband and till the production of samples as well as case .
property sacks marked samples Mark S1 to S3 allegedly taken at the spot vide Ext. PI to P3 and the sacks marked allegedly at the spot PI to P15 exhibited in Court as Ext. P10 to P24. In this regard prosecution has examined PW1 HC Naresh Kumar, of who was also signatory to recovery seizure memo Ext. PW1/B. PW1 has stated in the Court that Ext. P1 to P3 samples when rt produced in the Court were having seal 'T' at seven places and re-seal impression of Mark 'A' at 7 places and 3 seals impression of FSL but the impressions of 3 seals of FSL is contrary to statement of PW11 HHC Dharampal No. 77. He has stated in his examination-in-chief, who brought the samples on 20.09.2015 and after examination has stated as 4 seals impression of FSL. Whereas, when the case property was opened in the Court, there were three seals of FSL and this discrepancy shows the dent in the link evidence. This witness deposited the samples on 23.09.2015 with MHC police station Haroli and there is no explanation as to why the samples were not deposited on 22.09.2015 and this creates mishandling and tampering of these samples. So there is a dent in the link evidence and to this effect MHC Subhash Chand has produced the extract of register which is Ext. 12/A. He has admitted in ::: Downloaded on - 14/08/2023 20:36:52 :::CIS 30 cross-examination that there were cutting and additions in Malkhana Register as he deposed in the last three line of cross-examination (It is correct that cutting and addition is not .
initialed). Again there is a doubt of tampering with sacks which were marked as Mark P1 to P15, Ext. P10 to P24 and the weight is not mentioned in the register Ext Pw 12/A. He also admitted in cross-examination that after the first 2 lines, it is of correct to suggest that in copy of Malkhana Register PW12/A no weight of sacks marked P1 to P15 is mentioned and further rt admitted that he had not weighted mark P1 to P15 at the time of deposits of sacks and also admitted that no seizure memo was deposited with him by the I.O.
66. According to the learned counsel for the appellant, there are following discrepancies:-
(i) Thus prosecution failed to prove link evidence that case property was intact till production before Court.
(ii) Discrepancy in preparation is highly doubtful, case of prosecution that PW1/D, seizure memo there is not time mentioned in it and FIR no where mentioned, memo clearly admitted by the I.O. at P.42 "1" of all I prepared recovery memo Ex PW 1/D, I prepared 5 copies of memo, I have not mentioned time over memo, is left blank."
(iii) There is also discrepancy w.r.t. NCB form at the spot. 'It is correct that NCB form Ext PW 15/C is ::: Downloaded on - 14/08/2023 20:36:52 :::CIS 31 filled from top to column no. 8 with same ink and with same pen. It is correct that FIR No. NCB form is mentioned with same ink. Self stated I have mentioned this number after verifying .
telephonically from P.S. Haroli."
(iv) So the preparation of documents especially NCB form and seizure memo are highly doubtful. The seizure memo is anti-lined when about these 2 documents PW17 has admitted as it is correct that of as per recovery memo Ex PW1/D NCB form was taken into possession. This is a serious discrepancy which creates highly doubtful version rt of I.O., then why FIR No. was mentioned in NCB form and why NCB No. was kept blank in seizure memo Ex 1/D, NCB form was taken into possession, by this memo when all of version of 1.0. FIR No. mentioned in CB form after verifying No. of FIR then why FIR No. was not mentioned in seizure memo and NCB Forms and others.
Similarly Ext 17/A the FIR No. was subsequently written with red ink. Even arrest memo PW 17B to D was subsequently filled with different ink and hand-writing as admitted by 10. in his cross examination. Not only this 1.0. admitted PW 17/B to D were prepared by him, only attested the same.
67. He would further argue that the present case stands nowhere in linking evidence in view of above serious discrepancies.
::: Downloaded on - 14/08/2023 20:36:52 :::CIS 32Discrepancy in Inventory regarding Link evidence .
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68. He has pointed out another discrepancy in this case that the prosecution has tried to fill up the lacuna by preparing inventory at a belated stage i.e. on 11.10.2015 by .
S.H.O. PW18, Ext 12/D and the inventory was not prepared and the case property not produced by HHC Mini Minhas before the Judicial Magistrate 1st Class, Gaurav Kumar (PW12).
The case property was produced before PW21 by PW16 (S.I. of pritam Singh) on 13.10.2015 after two days from the date of preparation of inventory through HHC Surinder and HHC rt Ashwani and there is no entry in this regard, lacking out case property for preparation of inventory on 11.10.2015. In his regard PW12 MHC Subhash Chand has not whispered on his behalf on 11.10.2015, the case property i.e. mark P1 to 15 was taken from him for preparation and attestation from this Magistrate and Subhash Chand in whose custody property was deposited, he has stated in Court that on 13.10.2015 case property was again taken up from him by HHC Swaran Singh for preparation of inventory to Court and there is no mention of taking out case property on 11.10.2015 by SHO Ex. PW 12/F. So tampering of case property is established. Not only this that the preparation of inventory at belated stage of more than three months creates a doubt and chances of tampering is ruled out and PW18 in his examination stated that he prepared inventory suo-moto as the weight of each sack has ::: Downloaded on - 14/08/2023 20:36:52 :::CIS 34 not been mentioned. The recovered quantity was huge and I got checked the case file from prosecution. He advised to prepare inventory and to produce the same before the Court .
to certify under Section 52 of the Act. He further stated that he was not having any order to take case property from Maalkhana"
69. His further argument is that the case property of taken is highly doubtful and case property stand tampered with and there is no order of Judicial Magistrate to produce rt property before him. The alleged re- seal impression fixed on the sacks by S.I. Sanjay Kumar (PW15) and the original seal 'A' was not produced before Magistrate on 13.10.2015 for comparison. Serious discrepancy regarding production of sacks seized at the spot before the Judicial Magistrate.
::: Downloaded on - 14/08/2023 20:36:52 :::CIS 3570. We have considered the aforesaid submissions and find no merit. It cannot be disputed that in all criminal cases the normal discrepancies are bound to occur in .
depositions of witnesses due to normal errors of observations, namely, errors of memory loss due to lapse of time or due to mental disposition, such as shock and horror at the time of occurrence and Its only where the omission amount to of contradictions creating a serious doubt about the truthfulness of the witnesses and other witnesses also make material rt improvement while deposing in the Court, such evidence cannot be safe to rely upon. Further, even if a witness is found to be false, on a point, it does not mean his entire testimony has to be disbelieved, rather it is the duty of the Court to separate the grain from shaft. It is pointed out that minor contradiction, inconsistency, embellishment or improvement on trivial matters, which do not affect the core of the prosecution case cannot be made a ground on which the evidence of the prosecution can be rejected in its entirety.
Exaggeration per se do not render the evidence brittle, but it can be one of the factor to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility. Therefore, mere marginal variation in the statement of witnesses cannot be ::: Downloaded on - 14/08/2023 20:36:52 :::CIS 36 dubbed as improvement as the same may be elaboration of the statements made by the witnesses earlier.
71. Adverting to the case, it would be noticed that in .
the instant case, there has been a compliance of Section 52A of the Act. It is thereafter the samples have been sent for testing.
72. Section 54 of the ND&PS Act raises a of presumption for possession of illicit articles and reads thus:-
4. Presumption from possession of illicit articles.-In trials under this Act, it may be presumed, unless and rt until the contrary is proved, that the accused has committed an offence under this Act in respect of-
(a) any narcotic drug or psychotropic substance or controlled substance;
(b) any opium poppy, cannabis plant or coca plant growing on any land which he has cultivated;
(c) any apparatus specially designed or any group of utensils specially adopted for the manufacture of any narcotic drug or psychotropic substance or controlled substance; or
(d) any materials which have undergone any process towards the manufacture of a narcotic drug or psychotropic substance or controlled substance, or any residue left of the materials from which any narcotic drug or psychotropic substance or controlled substance has been manufactured, for the possession of which he fails to account satisfactorily.]
73. Thus, in terms of the aforesaid provisions, the seized articles as have been disclosed happens to be within ::: Downloaded on - 14/08/2023 20:36:52 :::CIS 37 the meaning of narcotic drugs and on account thereof, the presumption though rebutted in terms of Section 54 of the Act as referred to above will come into play.
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74. The Magistrate, who conducted the proceedings under Section 52A of the Act has been examined by the prosecution as PW 21 Gaurav Kumar, who in his deposition .
has stated that he was posted as Judicial Magistrate 1st Class, Court No. 1, Una at the relevant time i.e. year 2015. An application Ext. P21/A had been moved by SHO under Section 52A of the Act with a prayer to draw homogeneous sample of from the recovered poppy husk. The application was registered and he passed an order Ext. PW21/B on the basis of rt which he issued certificate Ext. PW21/B-1. He claimed to have discussed the entire proceeding which had taken place before him in his order Ext. PW21/B. He further stated that the application Ext. PW21/A was accompanied by an inventory of the seized contraband Ext. 12/D. He claimed that the proceedings of drawing samples had been photographed vide Ext.PW-13/A1 to A12 and he had checked the weight as mentioned in Ext. PW12/D and he even though noticed minor difference in the weight but attributed these due to transportation and weighing the same on a different balance.
He also stated regarding the drawing of samples of ½ kg from each sacks after making the packets inside the sack homogeneous and sealing the same with the court seal impression. He also stated that the sacks were also re-sealed with the court seal impression and the samples as well as the ::: Downloaded on - 14/08/2023 20:36:52 :::CIS 39 sacks were handed over to ASI Pritam Singh. The description of taking of samples and handing over the case property was also mentioned in the order Ext. PW-21/B. Even though this .
witness was cross-examined but nothing material could be extracted, of which the defence could take advantage.
75. The discrepancies, if any, as are sought to be pointed out by the appellant, are, in fact, no discrepancies in of the eyes of law and even otherwise do not go to the root of the case or materially affect the trial or core of the rt prosecution case and thereby render the testimonies of the witnesses liable to be discredited.
76. At a last ditch effort, the learned counsel for the appellant would argue that since the seal has not been produced in evidence during trial, therefore, the entire case of the prosecution needs to be eyed with suspicion and minutely scrutinize.
77. We again do not find merit in such contention. The question of non-production of seal was considered by learned Division Bench of tis Court in Jauni Ram vs. State of H.P. (2005) 1 SLC 54 and it was held that mere non production of specimen seal during the course of trial cannot lead to inference that the entire seizure and recovery was wrong and illegal.
::: Downloaded on - 14/08/2023 20:36:52 :::CIS 4078. This question was further considered by this Court in Rajesh Basniyat vs. State of H.P., Latest 2004 (2) HLJ 875 HP, wherein it was observed that there was no law or rule .
which makes it mandatory to produce seal in evidence at the time of trial.
CONCLUSIONS of
79. In view of the aforesaid discussion, the judgment of conviction and sentence, as recorded by the learned Special rt Judge Una, qua the appellant Jagat Singh (Cr. A. No. 652 of 2017), cannot sustain and the same is accordingly set aside.
80. Accordingly, the appeal is allowed and the appellant is ordered to be released immediately, if not required in any other case. The Registry is directed to prepare release warrant of the appellant. In view of the provisions of Section 437A Cr.P.C., the appellant is directed to furnish a personal bond in the sum of Rs.50,000/- with one surety of the like amount to the satisfaction of the learned Registrar (Judicial) of this Court, which shall be effective for a period of six months with a stipulation that in any event of SLP being filed against this judgment or on grant of the leave, the appellant on receipt of notice thereof shall appear before the Hon'ble Supreme Court.
::: Downloaded on - 14/08/2023 20:36:52 :::CIS 4181. In view of the aforesaid discussion, we find no merit in the appeal filed by the appellant Shaveg Singh (Cr.A. No. 653 of 2017) and accordingly, the same is dismissed.
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(Tarlok Singh Chauhan) Judge of (Ranjan Sharma) 14.08.2023 Judge (sanjeev) rt ::: Downloaded on - 14/08/2023 20:36:52 :::CIS