Himachal Pradesh High Court
Liaq Ram Son Of Shri Rai Singh vs State Of Punjab (2020) 2 on 9 March, 2022
Bench: Sabina, Satyen Vaidya
Reportable/Non-reportable
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 9th DAY OF MARCH, 2022
BEFORE
.
HON'BLE MS. JUSTICE SABINA
&
HON'BLE MR. JUSTICE SATYEN VAIDYA
CRIMINAL APPEAL No. 366 OF 2015
Between: -
1. LIAQ RAM SON OF SHRI RAI SINGH
RESIDENT OF VILLAGE PULWAHAL,
POLICE STATION, CHOPAL, TEHSIL
CHOPAL, DISTRICT SHIMLA (H.P.)
2. LACHHAMI DEVI WIFE OF LIAQ RAM
RESIDENT OF VILLAGE PULWAHAL,
POLICE STATION, CHOPAL, TEHSIL
CHOPAL, DISTRICT SHIMLA (H.P.)
....APPELLANTS
(BY MR. N.S. CHANDEL, SENIOR ADVOCATE
WITH MR. KSHITIZ THAKUR, ADVOCATE)
AND
STATE OF HIMACHAL PRADESH
..RESPONDENT
(MR. ASHWANI K. SHARMA,
ADDITIONAL ADVOCATE GENERAL)
Reserved on: 02.03.2022
Decided on: 09.03.2022
__________________________________________________________________
This appeal coming on for hearing this day, Hon'ble Mr.
Justice Satyen Vaidya, passed the following:-
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2
JUDGMENT
By way of instant appeal, the appellants have .
assailed their conviction and sentence ordered by learned Special Judge, Solan in Sessions Trial No. 3-S/7 of 2013 vide judgment dated 01.05.2015, whereby the appellants have been convicted for the commission of offence under Section 20 of the Narcotics Drugs and Psychotropic Substances Act,1985 (for short, "NDPS Act") and sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1,00,000/- each and in default of payment of fine amount, to undergo simple imprisonment for one year.
2. Brief facts of the case, on which the prosecution was launched against the appellants, are as under:
2.1 On the intervening night of 3/4.12.2012 the police party headed by Inspector/SHO Chaman Lal (PW-8) along-with HC Bhagat Singh No. 135 (PW-6) C. Kuldeep Kumar No. 239, HHG Rakesh Tanwar, HHG Manohar Lal and HHG Tek Chand left police station, Solan at about 11.00 p.m. in Government vehicle No HP-14A-6205 for place named as 'Jatoli' to lay "Nakka". While on 'Nakka", at about 2.15 a.m. a ::: Downloaded on - 10/03/2022 20:11:36 :::CIS 3 vehicle (Tata 407) bearing registration No. HP-63-
3975 approached from the side of "Oachghat" and was stopped. Besides the Driver, another male and a .
female were found occupying the front cabin. On being asked, the Driver was found juvenile (name withheld), whereas the person sitting beside him disclosed his name as Liaq Ram (A-1) and the female disclosed her name as Lachhami Devi (A-2). They all belong to village Pulwahal of Chopal Tehsil in District Shimla and were members of a family. Liaq Ram and Lachhami Devi were husband and wife and the juvenile was their son.
2.2 The vehicle was checked. Six bags containing "garlic produce" were found in the back of the vehicle and one polythene bag was found concealed under the seat on the conductor side of front cabin of the vehicle. On opening of polythene bag, another carry bag coloured 'Khaki' was found therein containing charas in the shape of balls and wicks. The charas was identified from smell and with the experience.
The charas was weighed and was found 2kgs 300 grams.
::: Downloaded on - 10/03/2022 20:11:36 :::CIS 42.3 The recovered charas was placed in the same carry bag and polythene and was sealed in a cloth parcel with six seals having impression 'T'. Facsimile of seal .
impression was separately preserved on a piece of cloth. Seal was handed over to HC Bhagat Singh No. 135 (PW-6). NCB forms were filled in triplicate.
2.4 Liaq Ram produced the registration certificate and insurance of the vehicle which was found registered in the name of Lachhami Devi. The parcel of recovered charas with vehicle, key, documents and six bags of garlic were taken into possession vide memo Ext.PW-6/B. The copy of memo was handed over to Liaq Ram. Due to late hours in the night and absence of any habitation near the place of seizure, no witnesses were available.
2.5 Rukka Ext.PW-8/B was prepared by the Inspector Chaman Lal and was sent to police station through Constable Kuldeep Kumar No. 239 for registration of FIR. Rukka was entertained at police station by officiating SHO/SI Nishant Kumar (PW-9) and FIR Ext.PW-9/A was accordingly registered. The case file was sent back to the spot through Constable Kuldeep Kumar.
::: Downloaded on - 10/03/2022 20:11:36 :::CIS 52.6 The appellants were formally arrested on the spot at 6.15 a.m. and arrest memos Ext. PW-6/C and Ext.PW-8/D were prepared. The information of the .
arrest of the appellants was telephonically provided to the person of their choice. The case property along-with appellants were brought to police station.
The case property was handed over by the Inspector/SHO Chaman Lal (PW-8) to MHC HHC r to Narender Prakash No. 378 (PW-7), who kept the same in safe custody of Malkhana.
contraband was sent for chemical analysis to SFSL The seized Junga on 04.12.2012 and was opined to be charas.
2.7 Juvenile was separately proceeded against in accordance with the provisions of Juvenile Justice Act.
3. Prosecution examined nine witnesses. PW-6 HC Bhagat Singh and PW-8 Inspector/SHO Chaman Lal were examined to prove the recovery of contraband on spot and consequent investigation conducted thereupon. PW-9 SI Nishant Kumar was examined to prove the receipt of Rukka Ext.PW-8/B in the police station, Solan on 04.12.2012 at about 4.00 a.m. through Constable Kuldeep Kumar No. 239 and recording of FIR Ext.PW-9/A on its ::: Downloaded on - 10/03/2022 20:11:36 :::CIS 6 basis. PW-7 HHC Narender Prakash No. 378 was examined to prove the deposit of contraband in safe custody of Malkhana as also its transition to SFSL Junga for chemical .
analysis. PW-3 proved the safe transition of seized contraband from police station to SFSL. PW-1, PW-2 and PW-5 were examined to prove the dispatch and receipt of special report under Section 57 of the Act. PW-4 Constable Fayyaz Khan No. 483 was examined to prove the recording of DDR No. 49 dated 3.12.2012 Ext.PW-4/A regarding departure of police party from police station, Solan.
4. Appellants were examined under Section 313 Cr.P.C. Appellants examined three witnesses in defence besides relying upon the document Ext. D-B, a medical prescription slip dated 03.12.2012 in the name of Lachhami Devi, Ext. DW-3/A copy of statement made by Constable Kuldeep Kumar No. 239, prosecution witness in the trial involving juvenile.
5. We have heard Mr. N.S. Chandel, learned Senior Advocate on behalf of the appellants and Mr. Ashwani K. Sharma, learned Additional Advocate General on behalf of the respondent-State and also gone through the record carefully.
::: Downloaded on - 10/03/2022 20:11:36 :::CIS 76. The challenge to the impugned judgment has mainly been laid on the ground of non-examination of all witnesses forming part of raiding party viz. Constable .
Kuldeep Kumar No. 239, HHG Rakesh Tanwar, HHG Manohar Lal and HHG Tek Chand as prosecution witnesses. Such conduct of prosecution has been alleged to be an intentional ploy to suppress the genesis of the case. It has been contended that in contrast to HC Bhagat Singh and Constable Kuldeep Kumar, the Home Guards accompanying the police party would have been more independent witnesses being not the employees of police Department. Further, the case of appellants is that Constable Kuldeep Kumar had already made a statement on oath in trial involving juvenile, therefore, he was given up on false pretext of being repetitive. Reliance has been placed on the document Ext.DW-3/A i.e. a copy of statement made by Constable Kuldeep Kumar in trial involving juvenile.
7. To say that Home Guards would have been independent witnesses is nothing but a fallacy. When the Home Guards were deputed to assist the police in discharge of its functions, they were directly under the control of PW-8 Inspector/SHO Chaman Lal, therefore, the ::: Downloaded on - 10/03/2022 20:11:36 :::CIS 8 distinction tried to be drawn between the Home Guards and other police officials associated in 'Nakka' has no basis. It has also been stressed that Home Guards were .
not authorized officers under Section 42 of the Act and as such could be said to be independent persons, also deserves to be rejected for the reason that even Constable Kuldeep Kumar did not fulfill the criteria to be called as authorized officer under Section 42 of the Act. A person
8.
r to having no interest in success of prosecution case can be termed to be an independent witness.
The contention that Constable Kuldeep Kumar was intentionally given up in order to avoid confrontation with his previous statement is also not substantiated.
Reliance on document Ext.DW-3/A is misplaced. Such document is not relevant and admissible in absence of fulfillment of specific requirement of Section 33 of the Evidence Act. The appellants were free to examine the said witness in their defence, in case they intended.
9. As per appellants, the story put-forth by the prosecution was highly improbable. Constable Kuldeep Kumar was stated to have left the spot along-with 'Rukka' to the police station at about 3.00 a.m. and was stated to have returned to the spot at about 4.30 a.m after ::: Downloaded on - 10/03/2022 20:11:36 :::CIS 9 registration of FIR which was not believable as the police station was at a distance of about six kilometers from the spot and Constable Kuldeep Kumar was stated to have left .
the spot on foot. It was not humanly possible to walk 12 kilometers in the given span of time that too after deducting time taken for recording of FIR at police station.
10. The discrepancy, as pointed out above, in our considered view is not fatal to the prosecution case. It has been stated by PW-6 and PW-8 that 'Rukka' was sent to police station from the spot through Constable Kuldeep Kumar. PW-9 SI Nishant Kumar has also categorically stated to have received the "Rukka" at police station through Constable Kuldeep Kumar. Perusal of statements of these witnesses reveal that defence has failed to falsify their version. There is not even a suggestion to these witnesses that "Rukka" was not sent through Constable Kuldeep Kumar. FIR Ext.PW-9/A also records that the "Rukka"was received through Constable Kuldeep Kumar No. 239. That being so, the mode of travel of Constable Kuldeep Kumar loses significance. The fact of the matter that stood proved is that the "Rukka" Ext.PW-8/B was prepared and sent to police station where FIR Ext.PW-9/A was registered on its basis.
::: Downloaded on - 10/03/2022 20:11:36 :::CIS 1011. The statements of PW-6 and PW-8 are in unison as regards the proceedings undertaken by the police party right from the moment they left the police station, Solan on .
03.12.20212 at 11.00 p.m. till they returned in the morning on 04.12.2012 at about 7.00 a.m. Both these witnesses have stated that at 11.00 p.m. on 03.12.2012, the police party left the police station, Solan in Government Vehicle No. HP-14A-6205 and laid 'Nakka' at vehicle bearing place known as 'Jatoli' on Solan-Oachghat road at a spot from where road bifurcates to Jatoli temple. At about 2.15 a.m. No. HP-63-3975 was stopped.
Appellants with their juvenile son were the occupants of vehicle. On checking the vehicle, charas weighing 2kgs 300 grams was found concealed under the seat of conductor side in front cabin of the vehicle. The contraband was seized and concealed in cloth parcel with affixation of six seals of mark 'T'. Facsimile of seal impression was preserved. Recovery memo of contraband along-with vehicle, its documents and six bags of garlic found loaded in the vehicle was prepared. Rukka was sent whereupon FIR was registered and on further investigation, the appellants were arrested. Site plan was prepared. Even after lengthy cross-examination of these ::: Downloaded on - 10/03/2022 20:11:36 :::CIS 11 witnesses, the defence has not been able to extract any material which may cast doubt on their version. The only discrepancy in statement of these witnesses, as pointed .
out on behalf of the appellant, is that as per HHC Bhagat Singh, PW-6, the place from where the contraband was recovered, under the seat, was open, whereas according to PW-8, the said place was covered and concealed. This discrepancy, in the given facts of the case, cannot be termed to be material as PW-6 has categorically stated that it was PW-8 who had entered the vehicle No. HP-63-3975 and he had found the contraband therein and all other persons in the 'Nakka' party including PW-6 were standing outside. Further, there is nothing on record to suggest even remotely that implication of appellants in the case is for some specific motive. Such a huge quantity of contraband cannot be said to have been planted by the police, in absence of any specific defence being raised on behalf of the appellants.
12. It has further been argued that police had failed to associate independent witnesses despite availability.
Reliance has been placed on the statement of DW-1, who was stated to be a local resident of the area where 'Nakka' was laid. Perusal of statement of this witness does not ::: Downloaded on - 10/03/2022 20:11:36 :::CIS 12 reveal that he was aware about the exact location of the spot where the 'Nakka' was laid by the police party during intervening night of 3/4.12.2012. He has made a general .
statement that he was resident of Jatoli and his house was adjacent to Solan-Rajgarh road at Jatoli below the road where the road goes up-to Jatoli temple. He has not been specific in showing the location of his house in site plan Ext.PW-8/C. He has also deposed that there are 8-10 houses on the road besides 3-4 shops and 'Dhabas' there.
According to this witness, Shivalik Poly Steel was also adjacent to the place from where the road bifurcates to the temple, where work goes on round the clock. He also stated that Jatoli temple was at a distance of 40 to 50 feet through short-cut and throughout night 'Bhandara' was arranged in that temple. According to this witness, people were usually available on the road head due to the fact that shops remained open and vehicles usually stopped there for taking food and tea etc. In cross-examination, he admitted that Shivalik Poly factory was at a sufficient distance from road which bifurcates to temple and was in a 'Nallah'. He further admitted that people visit the Jatoli temple during day time and leave back in the evening and also that 'Jagran' was organized in the temple generally ::: Downloaded on - 10/03/2022 20:11:36 :::CIS 13 during 'Shivratri' or other Hindu festivals. He further admitted that 'Khokas' (kiosks) remained closed during evening hours. The statement of DW-1 cannot be read in .
isolation to defeat the entire prosecution case. PW-8 has specifically stated that it was night and hence there was no availability of independent witnesses. To the similar effect is the statement of PW-6. The fact remains that at 2.30 in the night the independent witnesses could not be associated readily and easily. In so far as the availability of 'Dhabas' and houses on the road side are concerned, the same has also not been established convincingly. Not only DW-1 had not stated even a single word about the authenticity and genuineness of the site plan Ext.PW-8/C, none of other witnesses were confronted in this regard by the defence. Perusal of site plan Ext. PW-8/C reveals that the descriptions made therein do not match the site description provided by DW-3.
13. Even otherwise, it is trite law that non association of independent witnesses is not fatal in a case under the Act. In Surinder Kumar vs. State of Punjab (2020) 2 SCC 563, three Judge Bench of Hon'ble Apex Court has observed as under: -
::: Downloaded on - 10/03/2022 20:11:36 :::CIS 14"14. Further, it is contended by learned senior counsel appearing for the appellant that no independent witness was examined, despite the fact they were .
available. In this regard, it is to be noticed from the depositions of Devi Lal, Head Constable (PW-1), during the course of cross- examination, has stated that efforts were made to join independent witnesses, but none were available. The mere fact that the case of the prosecution is based on the evidence of official witnesses, does not mean that same should not be believed.
15. The judgment in the case of Jarnail Singh v. State of Punjab, relied on by the counsel for the respondent-
State also supports the case of the prosecution. In the aforesaid judgment, this Court has held that merely because prosecution did not examine any independent witness, would not necessarily lead to conclusion that accused was falsely implicated. The evidence of official witnesses cannot be distrusted and disbelieved, merely on account of their official status.
16. In the case of State (NCT of Delhi) v. Sunil it was held as under:
"It is an archaic notion that actions of the Police Officer, should be approached with initial distrust. It is time now to start placing at least ::: Downloaded on - 10/03/2022 20:11:36 :::CIS 15 initial trust on the actions and the documents made by the Police. At any rate, the Courts cannot start with the presumption that the police records are untrustworthy. AS a presumption of law, the presumption would be the other way 6 .
(2001)1 SCC 652 round. The official acts of the Police have been regularly performed is a wise principle of presumption and recognized even by the Legislature".
17. Learned counsel also placed reliance on the judgment of this Court in the case of Mohan Lal to support his argument that informant and investigator cannot be the same person. But in the subsequent judgment, in the case of Varinder Kumar this Court held that all pending criminal prosecutions, trials and appeals prior to law laid down in Mohan Lal, shall continue to be governed by individual facts of the case.
14. Another contention has been raised on behalf of the appellants that as per case of prosecution, the sealed packet containing seized contraband was sent to SFSL on 04.12.2012 itself and thereafter none had occasion to deal with such packet. This argument has been raised by pointing out that evidence disclosed writing of date 12.12.2012 on the packet with signature of some person.
According to appellants, this fact proved that sealed packet ::: Downloaded on - 10/03/2022 20:11:36 :::CIS 16 was interfered with and hence the interference with the case property could not be ruled-out. This fact again cannot help the cause of the appellants. Mere writing of .
date and signatures on the packet containing contraband can be attributed to many reasons. The packet was lying in SFSL, Junga till it was sent along-with opinion.
Thereafter, the packet containing contraband had been brought to Court more than once in relation with the proceedings of trial. Even mischief cannot be ruled-out.
15. The defence has also tried to take benefit from the fact that PW-4 in cross-examination stated that police party had taken a camera along-with them, when they had left the police station on 03.12.2012, whereas PW-8 had denied this fact. Keeping in view role of PW-4, much reliance cannot be placed on his statement to above effect.
PW-4 was examined to prove the recording of DDR Ext.PW-
4/A regarding departure of police party from police station on 03.12.2012. Even such departure report does not mention the carrying of camera by the police party.
16. No other point has been raised on behalf of the appellants.
::: Downloaded on - 10/03/2022 20:11:36 :::CIS 1717. In view of the discussion made hereinabove, we do not find any merit in the appeal and the same is accordingly dismissed.
.
( Sabina )
Judge
March 09, 2022 ( Satyen Vaidya )
(naveen) Judge
r to
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