Himachal Pradesh High Court
Piare Lal Son Of Shri Hari Ram vs State Of Himachal Pradesh on 8 April, 2015
Author: P.S.Rana
Bench: P.S.Rana
IN THE HIGH COURT OF HIMACHAL PRADESH, AT SHIMLA
Cr. Appeal No. 4005 of 2013.
Judgment reserved on: 19th March, 2015
.
Date of Decision: April 08, 2015
_______________________________________________________________
Piare Lal son of Shri Hari Ram .....Appellant.
Vs.
State of Himachal Pradesh ...Respondent.
Coram:
Hon'ble Mr.Justice P.S.Rana, Judge.
Whether approved for reporting1?. Yes.
For the appellants: Mr.Chaman Negi, Advocate.
For the respondent: Mr.J.S. Rana, Assistant Advocate
General.
P.S.Rana, J.
JUDGMENT: Present appeal is filed against the judgment and sentence passed by learned Special Judge Bilaspur in Sessions Trial No. 3/3 of 2009 titled State of H.P. Vs. Piare Lal and another decided on 26.12.2012.
Whether reporters of the Local papers are allowed to see the judgment?. Yes.
::: Downloaded on - 15/04/2017 17:58:01 :::HCHP 2BRIEF FACTS OF THE PROSECUTION CASE:
2. Brief facts of the case as alleged by the .
prosecution are that on dated 15.11.2008 PW12 ASI Lekh Ram along with ASI Krishan Chand, HC Hem Raj, LHC Pradeep Singh vide rapat Ext.PW3/A were on patrolling and detection work in Government vehicle No. HP-24-A-1114 driven by Pradeep Kumar. It is alleged by prosecution that when PW12 ASI Lekh Ram along with other officials were approaching near Goeli at about 5.30 PM accused persons were walking on foot towards Bharathu and when both accused persons saw the police officials both accused persons started walking in fast manner.
It is alleged by prosecution that on suspicion police party stopped their vehicle and accused persons were apprehended by PW12 ASI Lekh Ram with the help of other police officials. It is alleged by prosecution that in the meantime PW2 Chandu Ram also reached at the spot and he was associated in investigation of case. It is alleged by prosecution that no other independent witness was available due to lonely place. It is alleged by prosecution that accused disclosed their names as Piare Lal and other co-accused disclosed his name as Yogesh Kumar. It is further alleged by prosecution that PW12 ASI Lekh Ram told the accused persons orally as well as in writing vide ::: Downloaded on - 15/04/2017 17:58:01 :::HCHP 3 memo Ext.PW1/A that he had suspicion that both accused were possessing some narcotic contraband. It is alleged by .
prosecution that PW12 ASI Lekh Ram also informed the accused persons that they have legal right to be searched in presence of Magistrate or gazetted officer and memo Ext.PW1/A was prepared. It is alleged by prosecution that thereafter PW12 ASI Lekh Ram gave his personal search to accused persons vide memo Ext.PW1/F. It is alleged by prosecution that thereafter on personal search of accused two polythene packets Ext.P2 and Ext.P3 were recovered from front pockets of pant of co-accused Piare Lal in which black coloured substance was kept in the shape of sticks. It is alleged by prosecution that on opening the polythene packets charas in the shape of sticks was recovered and on weighing it was found 600 grams. It is also alleged by prosecution that two samples of 25 grams each obtained and sealed in parcel with three seals of seal 'D' and bulk of charas was also sealed in parcel with three seals of seal 'D'. It is alleged by prosecution that sample seal Ext.PW1/B was separately took on separate piece of cloth and NCB form Ext.PW10/E was prepared in triplicate and seal after use was handed over to PW2 Chandu Ram and memo Ext.PW1/C was prepared. It is ::: Downloaded on - 15/04/2017 17:58:01 :::HCHP 4 alleged by prosecution that PW12 ASI Lekh Ram prepared ruka Ext.PW12/A and sent it through LHC Pradeep Kumar to .
P.S. on the basis of which FIR Ext.PW10/F was registered. It is also alleged by prosecution that PW12 ASI Lekh Ram prepared site plan Ext.PW12/B and recorded statements of witnesses. It is also alleged by prosecution that thereafter PW12 ASI Lekh Ram produced accused persons along with three parcels Ext.P5 to Ext.P7, NCB forms in triplicate and sample seal to PW10 SHO/Inspector Taranjeet Singh who resealed all sealed parcels along with seal 'C' and filled relevant columns of NCB form and thereafter case property along with NCB form and sample seal were deposited with MHC Suresh Kumar who entered the same in malkhana register. It is alleged by prosecution that thereafter on dated 16.11.2008 PW6 Suresh Kumar handed over the case property to PW7 HC Neelam Kumar and handed over one sample parcel along with NCB forms and sample seal to PW8 HHC Jai Ram on dated 17.11.2008 vide RC No. 205/08 with direction to deposit the same in FSL Junga. It is alleged by prosecution that chemical analyst report was obtained and as per chemical analyst report entire mass was sample of charas. It is alleged by prosecution that thereafter on dated 17.11.2008 special ::: Downloaded on - 15/04/2017 17:58:01 :::HCHP 5 report Ext.PW11/A was prepared and same was handed over to HHC Brij Lal with direction to further hand over the same to .
S.P. Bilaspur.
3. Learned Special Judge framed the charge against both the accused under Section 20 read with Section 29 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (Hereinafter referred to as the 'Act') on dated 29.3.2011. Both accused did not plead guilty and claimed trial.
4. The prosecution and accused examined following witnesses in support of their case:-
Sr.No. Name of Witness PW1 SI Krishan Chand PW2 Chandu Ram PW3 C. Rajesh Kumar PW4 LHC Pardeep Singh PW5 Dila Ram PW6 HC Suresh Kumar PW7 HC Neelam Kumar PW8 HC Jai Chand PW9 HHC Brij Lal PW10 Taranjit Singh ::: Downloaded on - 15/04/2017 17:58:01 :::HCHP 6 PW11 SI Kishori Lal PW12 Lekh Ram .
DW1 Chavinder Kumar
4.1 Prosecution also produced following piece of
documentary evidence in support of its case:-
Sr.No. Description:
Ex.PW1/A. Search memo of co-accused
Piare Lal.
Ex.PW1/B. Sample of seal.
Ex.PW1/C. Memo of recovered charas
Ext.PW1/D. Arrest memo
Ex.PW1/E Arrest memo.
Ex.PW1/F Memo regarding personal
search of accused
Ext.PW3/A Copy of rapat No. 27-A
Ex.PW6/A Attested copy of Malkhana
register
Ex.PW7/A. Attested copy of RC
Ex.PW9/A. Copy of special report.
Ex.PW10/A Sample of seal
Ext.PW10/B Memo of re-seal
Ext.PW10/C Receipt of deposit of articles
Ext.PW10/D Receipt of Chemical Examiner
report
Ext.PW10/E NCB form
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7
Ext.PW10/F Copy of FIR No. 264/2008
Ext.PW11/A Special report
Ext.PW11/B Extract of register
Ext.PW12/A Ruka
.
Ext.PW12/B Site plan
Ext.PW12/C Statement of Chandu Ram
Ext.PW12/D Copy of report No. 38(A)
Ext.PW12/E Copy of report of No. 39(A)
5. Learned trial Court on dated 26.12.2012 convicted co-accused Piare Lal under Section 20 of the 'Act' and acquitted co-accused Yogesh Kumar. Learned trial Court sentenced the appellant to undergo rigorous imprisonment for two years and to pay fine of ` 20,000/- (Rupees twenty thousand only). Learned trial Court further directed that in default of payment of fine the convicted shall further undergo simple imprisonment for two months.
6. Feeling aggrieved against the judgment and sentence passed by learned trial Court appellant filed present appeal under Section 374 of the Code of Criminal Procedure.
7. Court heard learned Advocate appearing on behalf of the appellant and learned Additional Advocate General appearing on behalf of the State and also perused the entire record carefully.
8. Question that arises for determination before the Court in this appeal is whether learned trial Court did not ::: Downloaded on - 15/04/2017 17:58:01 :::HCHP 8 properly appreciate oral as well as documentary evidence placed on record and whether learned trial Court had .
committed miscarriage of justice to the appellant.
9. ORAL EVIDENCE ADDUCED BY PROSECUTION & ACCUSED:
9.1. PW1 Sub Inspector Krishan Chand has stated that he remained posted as ASI/IO in P.S. Barmana during the year 2008 to February 2009 and on dated 15.11.2008 he along with ASI Lekh Ram I.O. P.S. Barmana, HC Raj Kumar, LHC Pardeep Singh No. 369, along with departmental vehicle bearing registration No. HP-24A-1114 driven by driver Pardeep Kumar were on patrolling at Ghagas. He has stated that at about 5.30 PM when they reached Goeli on Kuddi Bharathu road two persons present in Court were walking on foot towards Bharathu and when they saw the police officials they started walking fast. He has stated that ASI Lekh Ram asked the driver to stop the vehicle and he with help of Raj Kumar apprehended one person and he with help of C. Pardeep also apprehended the other person. He has stated that in the meanwhile one person Chandu Ram son of Dalel Singh reached at the spot and he was associated as a witness. He has stated that no other independent witness was present because of lonely place. He has stated that thereafter ASI ::: Downloaded on - 15/04/2017 17:58:01 :::HCHP 9 Lekh Ram inquired the names of accused persons and accused persons disclosed their names as Piare Lal and .
Yogesh. He has stated that thereafter ASI Lekh Ram told the accused persons that there was suspicion of some contraband in possession of accused persons. He has stated that thereafter accused persons were informed about their legal right to be searched before the Magistrate or gazetted officer.
He has stated that thereafter both accused persons opted to be searched by police party and consent memo Ext.PW1/A was prepared which was signed by accused persons and witness. He has stated that thereafter ASI Lekh Ram gave his personal search to accused persons but nothing was recovered from him. He has stated that thereafter ASI Lekh Ram searched accused Piare Lal and during search two polythene packets were recovered from front pockets of his pant. He has stated that both packets were found containing charas in the shape of sticks. He has further stated that thereafter ASI Lekh Ram conducted personal search of Yogesh Kumar and nothing was found from his possession. He has stated that thereafter recovered charas was weighed by ASI Lekh Ram with the help of weight and scale and same was found 600 grams. He has stated that thereafter two samples ::: Downloaded on - 15/04/2017 17:58:01 :::HCHP 10 of 25 grams each were obtained and thereafter samples were wrapped in cloth parcel and sealed with three seals of seal 'D' .
and thereafter bulk charas was put into same two packets and wrapped in a cloth parcel and sealed with three seals of seal 'D'. He has stated that NCB form in triplicate was prepared and sample of seal was obtained on piece of cloth Ext.PW1/B. He has stated that memo Ext.PW1/C was also prepared. He has stated that grounds of arrests were informed to accused persons and memo was prepared. He has stated that thereafter ruka was sent through C.Pardeep Kumar to police station for registration of case. He has stated that sample of parcel and bulk parcel produced in Court are same which bear his signatures and signatures of accused persons and other witnesses. He has denied suggestion that independent witness Chandu Ram came after half an hour. He has denied suggestion that consent memo Ext.PW1/A was not explained and not handed over to accused persons. He has denied suggestion that signatures of accused were obtained on blank papers. He has denied suggestion that statements of Chandu Ram and Hem Raj were recorded in police station. He has denied suggestion that there was no provision of light at the spot and all proceedings were conducted in police station.
::: Downloaded on - 15/04/2017 17:58:01 :::HCHP 119.2 PW2 Chandu Ram has stated that he is running a vegetable shop at Ghagas. He has stated that on dated .
15.11.2008 at about 5.30 PM after closing his shop he was going to his house on foot and when he reached near Goeli accused persons were present and police officials were also present. He has stated that he was associated by police and further stated that accused disclosed their names as Piare Lal and Yogesh Kumar. He has stated that on search of co-
accused Piare Lal two polythene packets of envelope were recovered from front pockets of his pant. He has stated that in pockets charas in the shape of sticks was recovered. He has stated that recovered charas was found 600 grams. He has stated that thereafter two samples of 25 grams each were separated. He has stated that thereafter bulk of charas and sample of charas were sealed in separate parcels. He has also stated that thereafter memo Ext.PW1/C was prepared which was signed by him and other witnesses and accused persons and arrest memos Ext.PW1/D and Ext.PW1/E were also prepared which were signed by him and other witnesses. He has stated that bulk charas Ext.P1, polythene envelopes Ext.P2 and Ext.P3 are the same which were sealed in parcel Ext.P5. He has stated that parcels also bear his signatures. He ::: Downloaded on - 15/04/2017 17:58:01 :::HCHP 12 has stated that he does not remember whether police has given any option to accused persons or not. Thereafter he has .
stated that police has given the option to accused persons whether they intended to be searched before gazetted officer or Magistrate. He has stated that thereafter accused persons have given their consent to be searched by police officials as per memo Ext.PW1/A which was signed by accused and by him and police officials. He has stated that ASI Lekh Ram has also given his personal search but nothing incriminating was found. He has denied suggestion that seal 'D' was handed over to him after use. He has stated that police took out the packets from the pockets of co-accused Piare Lal. He has denied suggestion that memos were not read over and explained to him before obtaining his signatures. He has denied suggestion that there was dark at that time and there was no provision of light. Self stated that police has torch and vehicle light. He has denied suggestion that memos were not read over and explained to accused persons. He has denied suggestion that there were residential houses near the place of recovery of charas. He has stated that weight and scales were with police. He has denied suggestion that memos were ::: Downloaded on - 15/04/2017 17:58:01 :::HCHP 13 not read over and explained to both accused persons in his presence.
.
9.3 PW3 C. Rajesh Kumar has stated that he worked on CIPA computer and on dated 15.11.2008 ASI Lekh Ram and other police officials left the police station at 4.05 PM regarding which rapat No. 27A was recorded which is Ext.PW3/A and same is true attested copy taken from computer.
9.4 PW4 LHC Pardeep Singh has stated that during the year 2008 he was posted in police station Barmana as LHC and on dated 15.11.2008 he along with ASI Lekh Ram, ASI Krishan Chand, HC Hem Raj were on patrolling in government vehicle which was driven by Pardeep Kumar. He has stated that when they reached at link road at Goeli at about 5.30 PM two persons present in Court were going on the road and they tried to run fast when they saw the police jeep. He has stated that on suspicion they stopped the vehicle and apprehended the accused persons. He has stated that in the meantime witness Chandu Ram also reached at the spot. He has stated that accused disclosed their names as Piare Lal and Yogesh Kumar and ASI Lekh Ram told the accused that he suspected that some contraband was possessed by them and thereafter ::: Downloaded on - 15/04/2017 17:58:01 :::HCHP 14 option was given to them whether they intended to be searched before gazetted officer or before the Magistrate. He .
has stated that accused opted to be searched before police officials. He has further stated that ASI Lekh Ram had given his personal search to accused and memo was prepared. He has stated that thereafter search of accused persons was conducted and two polythene packets wrapped in polythene envelope recovered from pockets of Piare Lal. He has stated that nothing was recovered from possession of Yogesh Kumar.
He has stated that after weighing the recovered charas was found to be 600 grams out of which two samples of 25 grams each were separated and sealed in parcels after putting them in polythene envelope. He has stated that remaining bulk of charas was also sealed in parcel. He has stated that thereafter parcels were sealed with seal 'D' and NCB forms in triplicate were filled up and thereafter ASI Lekh Ram prepared ruka and handed over to him which was brought to police station for registration of case. He has stated that after registration of case he handed over the file to ASI Lekh Ram. He has stated that charas Ext.P1 and polythene envelopes Ext.P2 and Ext.P3 are the same which were recovered from accused. He has denied suggestion that when witness Chandu Ram reached ::: Downloaded on - 15/04/2017 17:58:01 :::HCHP 15 the spot search of accused persons was already conducted.
He has stated that ruka was handed over to him at 7.15 PM .
and he took the lift in a private vehicle to take ruka to police station.
9.5 PW5 Dila Ram has stated that he has four sons and further stated that two sons are residing with him whereas two sons are residing separately in another house.
He has stated that in his residential house there are eight rooms and out of these rooms one room and kitchen has been given by him to Piare Lal accused present in Court who is son-
in-law of his brother Devu Ram. He has stated that accused is residing since 7/8 years along with his wife Kamla Devi. He has stated that accused Piare Lal has no issue and accused Piare Lal sometimes used to lock the room and sometimes used to keep the room open. He has stated that he does not know about business of accused. He has stated that sometimes accused used to work in hotel and sometimes accused used to work in restaurant as servant.
9.6 PW6 HC Suresh Kumar has stated that since September 2007 to May 2009 he remained posted as MHC P.S. Barmana and on dated 15.11.2008 SHO Taranjit Singh handed over three parcels i.e. one parcel containing 550 ::: Downloaded on - 15/04/2017 17:58:01 :::HCHP 16 grams of charas and two samples parcels containing 25 grams each of charas. He has stated that three parcels were sealed .
with three seals of 'D' and three seals of 'C' each, NCB forms in triplicate, samples seals and he entered the same in malkhana register. He has stated that attested copy of malkhana register is Ext.PW6/A. He has stated that on dated 17.11.2008 he had to attend the court of Sessions Judge Chandigarh for evidence therefore on dated 16.11.2008 he handed over all case property to HC Neelam Kumar. He has stated that case property remained intact during his custody.
He has stated that parcels Ext.P5, Ext.P6 and Ext.P7 are same which were deposited with him and he handed over the same to HC Neelam Kumar along with sample seal and NCB form.
He has stated that he does not remember the time when he handed over the case property to HC Neelam Kumar. He has stated that he does not remember when he took the charge of malkhana again.
9.7 PW7 HC Neelam Kumar has stated that since September 2007 to the year 2009 he remained posted as I.O.
in P.S. Barmana and on dated 16.11.2008 MHC Suresh Kumar handed over the charge of malkhana to him as he had to go out of station for evidence. He has stated that on that day ::: Downloaded on - 15/04/2017 17:58:01 :::HCHP 17 MHC Suresh Kumar handed over the case property to him of case FIR No. 264/08 containing three parcels duly sealed with .
seals D and C, NCB forms in triplicate and sample seals. He has stated that on dated 17.11.2008 he handed over one sample parcel of case property along with NCB forms in triplicate and sample seals, copy of FIR, copy of memo vide RC No. 205/08 to HHC Jai Ram for depositing the same in FSL Junga who after depositing the same he handed over the receipt to him. He has stated that attested copy of malkhana register is Ext.PW6/A and attested copy of RC is Ext.PW7/A. He has stated that parcels Ext.P5, Ext.P6 and Ext.P7 are same. He has stated that case property remained intact during his custody. He has stated that he does not remember the time when the charge of malkhana was given to him. He has stated that charge of all case property was given to him.
9.8 PW8 HC Jai Ram has stated that during the year 2008 he remained posted as HHC on general duty in P.S. Barmana and on dated 17.11.2008 MHC Neelam Kumar P.S. Barmana handed over one parcel containing 25 grams charas which was having three seals of seal 'D' and three seals of seal 'C', NCB forms in triplicate, sample seals and other documents vide RC No. 205/08 for depositing the same in FSL ::: Downloaded on - 15/04/2017 17:58:01 :::HCHP 18 Junga which he deposited on dated 18.11.2008 in FSL Junga and obtained receipt on RC. He has stated that thereafter he .
handed over the receipt to MHC and further stated that sample parcels remained intact during his custody. He has denied suggestion that he has not deposited the articles in the office of FSL Junga.
9.9 PW9 HHC Brij Lal has stated that he is posted in P.S. Barmana for the last five years and on dated 17.11.2008 SHO/Inspector Taranjit handed over to him the special report of case FIR No. 264/08 which he handed over to ASI Kishori Lal Reader to S.P. Bilaspur at 2.15 PM on the same day. He has stated that photocopy of special report is Ext.PW9/A. He has stated that SHO Taranjit handed over the special report at 1PM.
9.10 PW10 Taranjit has stated that since December 2007 to February 2009 he remained posted as Inspector/SHO P.S. Barmana and on dated 15.11.2008 at 9.30 PM ASI Lekh Ram produced one parcel sealed with three seals of seal 'D' containing 550 grams of charas and two other parcels sealed with three seals of seal 'D' each containing 25 grams charas each, NCB forms in triplicate which were filled upto column No. 8. He has stated that he resealed all three parcels with his ::: Downloaded on - 15/04/2017 17:58:01 :::HCHP 19 own seal 'C' by affixing three seals impressions on each parcel and also filled up column No. 9 to 11 of NCB form. He has .
stated that sample seal Ext.PW10/A was separately took on piece of cloth and all case property along with NCB forms in triplicate and sample seals were deposited with MHC Suresh Kumar in proper condition. He has stated that he prepared resealed memo Ext.PW10/B. He has stated that he prepared special report and sent the same through HHC Brij Lal to S.P. Bilaspur with photocopy of special report is Ext.PW9/A and further stated that on receipt of chemical examiner report Ext.PW10/D and on completion of investigation he prepared challan and presented it in Court. He has stated that NCB form Ext.PW10/B also bears his signatures. He has stated that parcels Ext.P5 to Ext.P7 are same which were resealed by him.
He has stated that he does not remember the date when report of FSL was received in police station. He has stated that after resealing he kept the seal with him. He has denied suggestion that false case has been planted against accused persons.
9.11 PW11 SI Kishori Lal has stated that during the year 2008 he was posted as Reader to S.P. Bilaspur and on dated 17.11.2008 HHC Brij Lal brought special report to office which ::: Downloaded on - 15/04/2017 17:58:01 :::HCHP 20 he received at 2.15 PM which he entered in special report register at Sr. No. 12 and put up before S.P. Kuldeep Sharma .
at 2.20 PM who had seen the report and signed the same and thereafter handed over to him. He has stated that special report is Ext.PW11/A. he has stated that extract of register is Ext.PW11/B which is true as per original record. He has stated that S.P. handed over the special report back to him after writing the word 'seen' and after signing it.
9.12 PW12 SI Lekh Ram has stated that since August 2007 to September 2009 he remained posted as ASI/IO in P.S. Barmana and on dated 15.11.2008 he along with ASI Krishan Chand, HC Hem Raj, LHC Pardeep Singh were on patrolling and detection work in government vehicle No. HP-24A-1114.
He has stated that when they reached near Goeli accused persons present in Court were walking on foot and were moving towards Bharatu. He has stated that when accused persons saw the vehicle they started walking in fast manner and on suspicion they stopped the vehicle and both accused were apprehended. He has stated that in the meanwhile Chandu Ram was also associated. He has stated that accused persons have disclosed their names as Piare Lal and Yogesh Kumar. He has stated that accused persons were told that ::: Downloaded on - 15/04/2017 17:58:01 :::HCHP 21 police officials have suspicion upon them relating to possession of contraband. He has stated that option was given .
to accused persons whether they intended to be searched before the Magistrate or gazetted officer vide memo Ext.PW1/A. He has stated that thereafter police officials have given their personal search and nothing incriminating was found from possession of police officials. He has stated that thereafter accused persons were searched. He has further stated that two polythene packets were recovered from front pockets of pant of co-accused Piare Lal. He has stated that on search of co-accused Yogesh Kumar no contraband was found from his possession. He has stated that charas in the shape of sticks wrapped in polythene found. He has stated that charas was weighed with the help of scales which were in his kit after mixing both the packets. He has stated that bulk of charas was found 600 grams. He has stated that out of mixed substance two samples of 25 grams each were separated which were put in polythene separately and sealed in two parcels with three seals of seal 'D'. He has stated that parcels of charas and parcels of samples were separately prepared and NCB form in triplicate was filled up at the spot. He has stated that sample seal was also obtained on piece of cloth ::: Downloaded on - 15/04/2017 17:58:01 :::HCHP 22 and seal after use was handed over to witness Chandu Ram.
He has stated that he prepared ruka Ext.PW12/A and sent the .
same through LHC Pardeep Kumar for registration of case. He has stated that he also prepared site plan Ext.PW12/B and further stated that marginal notes are in his hand and bears his signatures. He has stated that he also recorded statements of witnesses as per their versions. He has stated that rapat No. 38/A was also recorded and rapat No. 39/A was also recorded. He has stated that after completion the investigation he handed over the file to SHO Taranjit after receipt of chemical analyst report Ext.PW10/D. He has stated that bulk charas is Ext.P1 and polythene packets Ext.P2 and Ext.P3 are the same which were recovered from accused Piare Lal. He has stated that parcels Ext.P6 and Ext.P7 were prepared as samples at the spot. He has stated that one of samples was sent for chemical examination. He has denied suggestion that independent witness Chandu Ram reached at the spot after half an hour of apprehending the accused. He has stated that when accused was apprehended at that time Sun was set but it was not too dark. He has denied suggestion that he did not ask anything from accused persons. He has denied suggestion that contents of memo were not explained ::: Downloaded on - 15/04/2017 17:58:01 :::HCHP 23 to accused persons and witness Chandu Ram. He has denied suggestion that during search and seizure proceedings some .
persons were passing through the way. He has denied suggestion that statements of witnesses were not recorded at the spot. He has denied suggestion that he has recorded the statement of witnesses according to his own versions. He has denied suggestion that he got the signatures of accused persons and witness Chandu Ram on blank papers. He has denied suggestion that he had not given any option to accused persons to be searched before the Magistrate or gazetted officer. He has denied suggestion that nothing was recovered from possession of accused.
10. Statements of accused persons were recorded under Section 313 Cr.P.C. Accused Piare Lal has stated that he is innocent and further stated that at the relevant time he was quarrelling with co-accused Yogesh Kumar at Ghagas and thereafter police took them to police station where their signatures were obtained on blank papers. He has stated that he thought that police has registered the case against him relating to quarrel with co-accused Yogesh Kumar but later on he came to know that police officials have implicated him in present case. Accused also examined defence witness.
::: Downloaded on - 15/04/2017 17:58:01 :::HCHP 2410.1. DW1 Chavinder Kumar has stated that on dated 15.11.2008 at about 5 PM while he was returning back from .
Shimla he halted at Ghagas to change the bus to his village.
He has stated that Ved Parkash was accompanying him and at Ghagas when they were taking tea they heard noise outside the restaurant and noticed that both accused persons namely Piare Lal and Yogesh were quarrelling with each other in front of shop of vegetables. He has stated that in the meantime police party came in vehicle Tata 207 and they took both accused persons along with vegetables vendor in vehicle and moved towards Barmana side. He has stated that vegetables vendor was Chandu Ram. He has stated that thereafter he left the spot to his native place and narrated the incident to parents of Yogesh Kumar and wife of Piare Lal. He has stated that Yogesh is residing in his village and further stated that villages are situated in the same Panchayat. He has stated that Yogesh is not related to him but he is his friend for the last 6/7 years. He has stated that he is not in visiting terms with him. He has stated that co-accused Yogesh is agriculturist and used to work at his home. He has stated that he is working as Munim in vegetables market Takoli with his brother-in-law Chandermani. He has stated that co-accused ::: Downloaded on - 15/04/2017 17:58:01 :::HCHP 25 Piare Lal is known to him and he is residing in Takoli village.
He has stated that he could not produce the bus tickets in .
order to prove that he came from Shimla on the alleged date.
He has stated that he does not know that why Piare Lal and Yogesh were quarrelling with each other at Ghagas. He has denied suggestion that he did not come to Ghagas and also denied suggestion that accused persons were not quarrelling.
He has denied suggestion that on dated 15.11.2008 at about 5.30 PM both accused persons were apprehended by police and he has denied suggestion that after search 600 grams charas was recovered from front pocket of Piare Lal. He has stated that accused persons were took by police in his presence from Ghagas. He has stated that he did not intervene when both accused persons were took by police. He has stated that he did not think it proper to intervene in police work. He has denied suggestion that at the instance of accused he has concocted a false story without any basis in order to save the accused persons.
11. Submission of learned Advocate appearing on behalf of the appellant that learned trial Court did not properly appreciate oral as well as documentary evidence placed on record and caused miscarriage of justice to appellant is ::: Downloaded on - 15/04/2017 17:58:01 :::HCHP 26 rejected being devoid of any force for the reasons hereinafter mentioned. Court has perused seizure memo Ext.PW1/C .
placed on record. As per contents of seizure memo 600 grams charas was found from exclusive and conscious possession of accused Piare Lal on dated 15.11.2008 at 5.45 PM at place Goeli in presence of marginal witnesses namely PW1 Sub Inspector Krishan Chand and PW2 Chandu Ram. Court has carefully perused the testimony of PW1 Krishan Chand who has specifically stated that in his presence 600 grams charas was found from conscious and exclusive possession of co-
accused Piare Lal. Contents of seizure memo Ext.PW1/A are proved on record in accordance with law as per testimony of PW1 Sub Inspector Krishan Chand. Hence it is held that testimony of Sub Inspector Krishan Chand is trustworthy reliable and inspires confidence of Court. There is no reason to disbelieve the testimony of PW1 Sub Inspector Krishan Chand.
There is no evidence on record in order to prove that PW1 Sub Inspector Krishan Chand has hostile animus against appellant Piare Lal prior to incident or at any point of time.
12. Court has carefully perused the testimony of marginal witness of seizure memo Ext.PW2 Chandu Ram. PW2 Chandu Ram has specifically stated in positive cogent and ::: Downloaded on - 15/04/2017 17:58:01 :::HCHP 27 reliable manner that 600 grams charas was recovered from possession of co-accused Piare Lal in his presence. Testimony .
of PW2 Chandu Ram is trustworthy reliable and inspires confidence of Court. There is no reason to disbelieve the testimony of PW2 Chandu Ram. There is no evidence on record in order to prove that PW2 Chandu Ram has hostile animus against appellant Piare Lal prior to recovery of contraband or at any point of time.
13. Court has also carefully perused the testimony of PW4 LHC Pardeep Singh who has stated in positive cogent and reliable manner that he was present at the time of recovery and further stated in positive manner that 600 grams charas was recovered from conscious and exclusive possession of co-
accused Piare Lal in his presence. Testimony of PW4 LHC Pardeep Singh is trustworthy reliable and inspires confidence of Court. There is no reason to disbelieve the testimony of PW4 LHC Pardeep Singh. There is no evidence on record in order to prove that PW4 LHC Pardeep Singh has hostile animus against appellant Piare Lal prior to incident or at any point of time.
14. Similarly Court has carefully perused the testimony of PW12 ASI Lekh Ram who has stated in positive ::: Downloaded on - 15/04/2017 17:58:01 :::HCHP 28 cogent and reliable manner that 600 grams of charas was recovered from exclusive and conscious possession of co-
.
accused Piare Lal. Hence it is held that testimony of PW12 ASI Lekh Ram is trustworthy reliable and inspires confidence of Court. There is no reason to disbelieve the testimony of PW12 ASI Lekh Ram. There is no evidence on record in order to prove that PW12 ASI Lekh Ram has hostile animus against appellant Piare Lal prior to incident or at any point of time.
15. Court has carefully perused the testimony of corroborative witness PW3 C. Rajesh Kumar. It is proved on record that as per testimony of PW3 C. Rajesh Kumar rapat No. 27-A Ext.PW3/A was recorded. Court has also perused testimony of PW6 HC Suresh Kumar who has specifically stated that on dated 15.11.2008 SHO Taranjit Singh handed over to him three parcels i.e. one parcel containing 550 grams of charas and two parcels containing 25 grams charas. He has further stated that NCB form in triplicate, sample of seal were deposited in malkhana register. He has proved the extract of malkhana register Ext.PW6/A placed on record. Hence it is held that testimony of PW6 HC Suresh Kumar is trustworthy reliable and inspires confidence of Court. There is no reason to disbelieve the testimony of PW6 HC Suresh Kumar. Court has ::: Downloaded on - 15/04/2017 17:58:01 :::HCHP 29 also perused testimony of PW7 HC Neelam Kumar. PW7 HC Neelam Kumar has specifically stated that he was officiating .
MHC and HC Suresh Kumar had handed over to him the case property vide FIR No. 264/08 containing three parcels duly sealed with seals 'D' and 'C' and NCB form in triplicate and sample of seal. PW7 HC Neelam Kumar has stated that on dated 17.11.2008 he handed over one sample parcel of case along with NCB forms in triplicate and sample seals, copy of FIR, copy of memo vide RC No. 205/08 to HHC Jai Ram to deposit the same in FSL Junga. He has stated in positive manner that receipt issued from office of FSL Junga was deposited with him and further stated in positive manner that testimony of PW7 HC Neelam Kumar is also trustworthy reliable and inspires confidence of Court. There is no reason to disbelieve the testimony of corroborative witness PW7 HC Neelam Kumar. Court has also perused testimony of corroborative witness PW8 HC Jai Ram who has specifically stated in positive manner that on dated 17.11.2008 MHC Neelam Kumar had handed over one parcel containing 25 grams charas having three seals of 'D' and three seals of seal 'C', NCB forms in triplicate, sample seals and other documents vide RC No. 205/08 for depositing the same in FSL Junga and ::: Downloaded on - 15/04/2017 17:58:01 :::HCHP 30 he deposited the same in FSL Junga and obtained the receipt and thereafter he handed over the receipt to MHC. Testimony .
of PW8 HC Jai Ram is trustworthy reliable and inspires confidence of Court. There is no reason to disbelieve the testimony of PW8 HC Jai Ram. Court has also perused the testimony of PW9 HHC Brij Lal who has stated that special report of FIR No. 264/08 was handed over by him to ASI Kishori Lal who was posted as Reader to S.P. Bilaspur on dated 17.11.2008 at 2.15 PM. Testimony of corroborative witness PW9 HHC Brij Lal is also trustworthy reliable and inspires confidence of Court and there is no reason to disbelieve the testimony of PW9 HHC Brij Lal. Court has also carefully perused the testimony of PW10 SHO Taranjit Singh who has specifically stated in positive manner that three parcels were produced before him along with NCB form in triplicate and he resealed all three parcels with his own seal 'C' and also filled up column Nos. 9 to 11 of NCB form. Testimony of PW10 SHO Taranjit relating to resealing is also trustworthy reliable and inspires confidence of Court. There is no reason to disbelieve the testimony of PW10 SHO Taranjit Singh. There is no evidence on record in order to prove that PW10 SHO Taranjit Singh has hostile animus against appellant at any point of ::: Downloaded on - 15/04/2017 17:58:01 :::HCHP 31 time. Court has also carefully perused the testimony of another corroborative witness PW11 Kishori Lal who has .
stated in positive manner that in the year 2008 he was posted as Reader to S.P. Bilaspur. PW11 Kishori Lal has further stated that on dated 17.11.2008 HHC Brij Lal brought special report to the office which he received at 2.15 PM and entered in special report register at Sr. No. 12 and thereafter placed the special report before S.P. Kuldeep Sharma at 2.20 PM who had seen and signed the special report and handed over the same to him. PW11 SI Kishori Lal has produced special report Ext.PW11/A placed on record. Hence it is held that testimony of PW11 SI Kishori Lal is trustworthy reliable and inspires confidence of Court. There is no reason to disbelieve the testimony of PW11 SI Kishori Lal. There is no evidence on record in order to prove that PW11 SI Kishori Lal has hostile animus against appellant Piare Lal prior to incident or at any point of time.
16. Court has carefully perused the documentary evidence placed on record. Consent memo Ext.PW1/A, seizure memo Ext.PW1/C, information of arrest memos Ext.PW1/D and Ext.PW1/E, personal search memo Ext.PW1/F, daily station diary Ext.PW3/A, extract of malkhana register Ext.PW6/A, road ::: Downloaded on - 15/04/2017 17:58:01 :::HCHP 32 certificate Ext.PW7/A, special report under Section 57 of NDPS Act Ext.PW9/A, seal impression upon plain cloth Ext.PW10/A, .
resealing certificate issued under Section 55 of NDPS Act Ext.PW10/B, NCB forms Ext.PW10/E, FIR Ext.PW10/F, extract of malkhana register Ext.PW11/B placed on record, site plan Ext.PW12/B corroborated the oral evidence produced by prosecution.
17. Court has also carefully perused the report of State Forensic Science Laboratory Junga Ext.PW10/D placed on record. Assistant Chemical Examiner, NDPS Division, State Forensic Science Laboratory Junga has specifically stated in his report Ext.PW10/D that various scientific tests such as physical, identification, chemical and chromatographic tests were carried out in Laboratory with exhibit under reference.
He has further stated that tests performed above indicated cannabinols including the presence of tetrahydrocannabinol in the sample. He has further stated in his report that microscopic examination indicated the presence of cystolithic hair in the sample and charas is a resinous mass and resin is an active ingredient of charas which on testing was found present and quantity of resin as found in sample is 34.28% W/W. Assistant Chemical Examiner, NDPS Division, State ::: Downloaded on - 15/04/2017 17:58:01 :::HCHP 33 Forensic Science Laboratory Junga has reported that entire mass of exhibit is a mixture of cannabis and sample of charas.
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18. Submission of learned Advocate appearing on behalf of the appellant that prosecution did not associate respectable person of locality and on this ground appeal be accepted is rejected being devoid of any force for the reasons hereinafter mentioned. It is proved on record that present case was not a case of prior information but present case was a case of chance recovery. Even prosecution has associated independent witness PW2 Chandu Ram who has corroborated the version of prosecution story. It is held that in chance recovery association of two independent witnesses is not mandatory because search of accused was conducted on the basis of suspicion only.
19. Another submission of learned Advocate appearing on behalf of appellant that there are material contradictions in the statements of prosecution witnesses and on this ground appeal filed by appellant be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. Court has carefully perused the testimonies of all witnesses. There is no material contradiction in evidence adduced by prosecution which goes to the root of case. It is ::: Downloaded on - 15/04/2017 17:58:01 :::HCHP 34 well settled law that minor contradictions are bound to come in criminal case when testimony of prosecution witness is .
recorded after a gape of sufficient time. In present case recovery of contraband was effected on dated 15.11.2008 at 5.45 PM at Goeli and statements of prosecution witnesses were recorded on dated 11.6.2012, 12.6.2012 and 13.6.2012.
Hence it is held that when statement of prosecution witness is recorded after sufficient gape of time then minor contradictions are bound to come in prosecution case. Hence it is held that minor contradictions are not fatal to prosecution case.
20. Another submission of learned Advocate appearing on behalf of the appellant that link evidence is totally missing in present case and on this ground appeal filed by appellant be accepted is rejected being devoid of any force. Court has carefully perused the oral testimony of eye witness and oral testimonies of corroborative witnesses and Court has also perused the documentary evidence placed on record by prosecution. Link evidence in present case is not missing. Oral testimony of eye witness is corroborated by testimony of other corroborative witnesses and is also corroborated by documentary evidence placed on record.
::: Downloaded on - 15/04/2017 17:58:01 :::HCHP 35Hence it is held that link evidence is not missing in present case.
.
21. Another submission of learned Advocate appearing on behalf of the appellant that search was not conducted on the basis of search warrant or an authorization as mentioned in Section 41 of NDPS Act 1985 and on this ground appeal be accepted is rejected being devoid of any force for the reasons hereinafter mentioned. It is held that search warrant or an authorization is required only when contraband is concealed in building, conveyance or enclosed place. In present case contraband was not concealed in any building, conveyance or enclosed place but was kept in pocket of pant of appellant when he was moving upon public road.
Hence it is held that search warrant or authorization under Section 41 of NDPS Act 1985 was not required in present case.
22. Another submission of learned Advocate appearing on behalf of appellant that Investigating Agency did not comply the provision of Section 42 of NDPS Act in present case and on this ground appeal be accepted is rejected being devoid of any force for the reasons hereinafter mentioned. It is held that requirement of Section 42 of NDPS Act 1985 should be complied only when contraband is concealed in any ::: Downloaded on - 15/04/2017 17:58:01 :::HCHP 36 building, conveyance or enclosed place. It is not the case of prosecution that contraband was concealed in any building, .
conveyance or enclosed place. On the contrary it is proved on record that contraband was kept by appellant in his pocket when he was moving on public road.
23. Another submission of learned Advocate appearing on behalf of appellant that even provision of Section 50 of NDPS Act was not complied is also rejected being devoid of any force for the reasons hereinafter mentioned. It is proved on record that option was given to appellant whether he intended to be searched before gazetted officer or Magistrate and it is proved on record that appellant has given option that he should be searched before the police officials. Hence it is held that Investigating Agency had complied provision of Section 50 of NDPS Act 1985 in present case.
24. Another submission of learned Advocate appearing on behalf of appellant that police officials have no authority to conduct the search of a person and on this ground appeal be accepted is rejected being devoid of any force. As per Section 42 of NDPS Act 1985 the Central Government or State Government is legally competent to issue authorization ::: Downloaded on - 15/04/2017 17:58:01 :::HCHP 37 to any office being an officer superior in rank to a peon, sepoy or constable to conduct search in NDPS Act, 1985. Hence it is .
held that search of appellant was conducted as per authorization given under Section 42 of NDPS Act 1985. In the present case search was conducted by ASI Lekh Ram who was legally competent to search.
25. Another submission of learned Advocate appearing on behalf of the appellant that specimen seal was not sent to laboratory and on this ground appeal filed by appellant be accepted is rejected being devoid of any force for the reasons hereinafter mentioned. Court has perused the chemical analyst report Ext.PW10/D placed on record.
Assistant Chemical Examiner, NDPS Division, State Forensic Science Laboratory Junga namely C.L.Sharma has specifically stated that seal impression was sent by SHO in the form NCB-
1 and he has specifically mentioned in his report that seals of parcels were tallied with seal impression sent by SHO in NCB form-1.
26. Another submission of learned Advocate appearing on behalf of appellant that scale on which alleged contraband was weighed was not produced in Court and scale was not approved by State of H.P. under Himachal Pradesh ::: Downloaded on - 15/04/2017 17:58:01 :::HCHP 38 Weights and Measures (Enforcement) Act 1968 and on this ground appeal be accepted is rejected being devoid of any .
force for the reasons hereinafter mentioned. It is proved on record that PW12 ASI Lekh Ram has specifically stated that weight and scale were kept by him in his kit. There is no evidence on record in order to prove that weights and scales were not approved under H.P. Weights and Measures (Enforcement) Act 1968.
27. Another submission of learned appearing on behalf of the appellant that reports submitted by Assistant Chemical Examiner, NDPS Division, State Forensic Advocate Science Laboratory Junga Ext.PW10/D is inadmissible because laboratory which had tested the contraband is not eligible and is not fully equipped to test such contraband is also rejected being devoid of any force for the reasons hereinafter mentioned. It is held that report of State Forensic Science Laboratory is per se admissible under Section 293 of Cr.P.C.
1973. Appellant did not file any application before learned trial Court for examination of Mr. C.L. Sharma Assistant Chemical Examiner who has submitted the report in order to prove that State Forensic Science Laboratory Junga was not legally ::: Downloaded on - 15/04/2017 17:58:01 :::HCHP 39 competent to test the contraband and was not fully equipped to test the contraband.
.
28. Another submission of learned Advocate appearing on behalf of the appellant that two views have emerged in present case and on this ground appeal filed by appellant be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. In the present case only one view has emerged and recovery of contraband is proved as per oral eye witnesses and is corroborated with link evidence and is also corroborated by documentary evidence placed on record.
29. Another submission of learned Advocate appearing on behalf of appellant that material incriminating questions have not been put to appellant when statement of appellant was recorded under Section 313 Cr.P.C. and on this ground appeal be accepted is rejected being devoid of any force for the reasons hereinafter mentioned. Court has carefully perused the statement recorded under Section 313 Cr.P.C. It is held that all incriminating questions have been put to accused when statement of accused was recorded by learned trial Court under Section 313 Cr.P.C.
::: Downloaded on - 15/04/2017 17:58:01 :::HCHP 4030. Another submission of learned Advocate appearing on behalf of appellant that prosecution witnesses .
are interested witnesses and on this ground appeal filed by appellant be accepted is rejected being devoid of any force. It is well settled law that police officials are not ipso facto interested witnesses. There is no evidence on record in order to prove that police officials have hostile animus against appellant at any point of time.
31. Another submission of learned appearing on behalf of appellant that all recoveries and specimen signatures have been made in violation of Article Advocate 20(3) of Constitution of India and on this ground appeal filed by appellant be accepted is rejected being devoid of any force for the reasons hereinafter mentioned. It is held that Narcotic Drugs and Psychotropic Substances Act 1985 is a special Act and special provisions have been made in Act relating to search and seizure proceedings. It is held that Investigating Officer had prepared the search and seizure memos strictly in accordance with Narcotic Drugs and Psychotropic Substances Act 1985. It is well settled law that when there is conflict between general and special law then special law always prevails over general law.
::: Downloaded on - 15/04/2017 17:58:01 :::HCHP 4132. Another submission of learned Advocate appearing on behalf of appellant that substantive sentence .
imposed by learned trial Court is very harsh and on alternative ground appeal filed by appellant be accepted is rejected being devoid of any force for the reasons hereinafter mentioned. It is held that learned trial Court has awarded proper sentence keeping in view the quantity of contraband recovered from exclusive and conscious possession of appellant. It was held in case reported in AIR 1973 SCC 944 (Full Bench) titled Jose vs. State of Kerala that conviction could be based upon sole testimony of witness if it inspires confidence of Court and if testimony of witness is reliable and trustworthy. It is also well settled law that concept of falsus in uno falsus in omnibus is not applicable in criminal cases. (See AIR 1980 SC 957 titled Bhee Ram vs. State of Haryana. See AIR 1971 SC 2505 titled Rai singh vs. State of Haryana.) It was held in case reported in AIR 2006 SC 1796 titled State of Haryana vs. Ranbir @ Rana that Section 50 of NDPS Act shall be applicable only in case of personal search of accused and would not applicable in respect of bag, article, or container which accused at the relevant time was being carried. It was held in case reported in AIR 2003 SC 07 titled Bharatbhai Bhagwanjibhai vs. State of Gujarat that in chance ::: Downloaded on - 15/04/2017 17:58:01 :::HCHP 42 recovery Section 50 would not be attracted. It was held that when police officials were on patrolling duty and when .
accused started running, when he saw the police officials and thereafter suspicion created in the mind of police officials and thereafter search was conducted then compliance of Section 50 of NDPS Act 1985 would not apply. It is well settled law that as per Section 59 of Indian Evidence Act 1872 all facts except the contents of documents or electronic record can be proved by way of oral evidence. As per Section 134 of Indian Evidence Act 1872 no particular number of witness in any case is required for proof of any fact. It was held in case reported in AIR 2003 SC 854 titled Lallu Manjhi and another vs. State of Jharkhand that law of evidence does not require any particular number of witnesses to be examined and it was held that Court may classify the oral testimony into three categories (1) Wholly reliable (2) Wholly unreliable and (3) Neither wholly reliable nor wholly unreliable. It was held that in first two categories there would be no difficulty in accepting or discarding the testimony of a single witness. It was also held in case reported in JT 2008(8) SC 650 titled State of U.P. vs. Kishanpal and others that it is the quality of evidence and not ::: Downloaded on - 15/04/2017 17:58:01 :::HCHP 43 quantity of evidence which requires to be judged by the Court to place credence to the testimony of witness.
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33. In view of above stated facts it is held that learned trial Court has properly appreciated the oral as well as documentary evidence placed on record in present case. It is also held that learned trial Court did not commit any miscarriage of justice to appellant. However word mentioned as '205.68' grams of charas mentioned in para 27 of judgment is ordered to be deleted and word '600 grams' charas is ordered to be incorporated. Appeal filed by appellant is dismissed. File of learned trial Court along with certified copy of judgment be sent back forthwith. Pending miscellaneous application(s) if any also stands disposed of.
April 08,2015 (P.S. Rana)
(ms). Judge
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