Himachal Pradesh High Court
Ashwani Kumar vs State Of H.P on 30 September, 2020
Bench: Sureshwar Thakur, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No. 154 of 2018 Reserved on: 24.9.2020 .
Decided on: 30.9.2020
Ashwani Kumar ...Appellant.
VERSUS
State of H.P. ...Respondent.
Coram
The Hon'ble Mr.Justice Sureshwar Thakur, Judge.
The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
Whether approved for reporting? yes For the Appellant: Mr. Ajay Kochar, Advocate.
For the Respondent: Mr. Hemant Vaid and Mr. J.S. Guleria, Dy. A.G., for the respondent-State.
_________________________________________________ Sureshwar Thakur, Judge The instant appeal is directed against the judgment rendered, on 19.2.2018, by the learned Special Judge-II, Kangra at Dharamshala, District Kangra (H.P. upon, Sessions case No. 75-N/VII/2016, and, where ::: Downloaded on - 30/09/2020 20:19:35 :::HCHP ...2...
through(s), the accused became convicted, for, a charge, .
drawn under Sections 15 and 20, of, the Narcotic and Psychotropic Substances Act, and, also consequent therewith sentence of rigorous imprisonment, extending, for a period of 10 years, and, also a fine of Rs.
1,00,000/- became imposed, upon him, and, in default, of, payment of fine, he stood further sentenced to undergo rigorous imprisonment for a period of two years.
The convict is also sentenced to undergo rigorous imprisonment extending for a period of one year, and, is further sentenced to pay a fine of Rs. 10,000/-, and in default of payment of fine, he stood further sentenced, to, undergo rigorous imprisonment, extending for a period of two months, for, commission of offence(s) punishable under Section 15, of, the Narcotic Drugs and Psychotropic Substances Act.
2. Brief facts of the case, are, that on 14.3.2016, at about 6:10 PM, a police party headed by SI Mast Ram, ::: Downloaded on - 30/09/2020 20:19:35 :::HCHP ...3...
Incharge, Police Post, Kandwal was on patrolling .
alongwith other police officials near MKM School, Bhadroya. The appellant, on noticing, the police party coming towards him got perplexed, and at once tried, to pull down the shutter of his shop. He was apprehended by the police. On having suspicion of contraband with the appellant and in his grocery shop two independent witnesses Suresh Kumar and Arun Katoch were called telephonically. Notice under Section 50 of NDPS Act was given to him and personal search of the accused was conducted. No incriminating article was recovered on his personal search. Thereafter, the grocery shop of the appellant was searched in the presence of the witnesses.
During the search of the shop one plastic bag containing 1 kg and 200 gm of Charas was recovered from the counter and one plastic bag containing 4 kg 640 gm poppy straw was recovered which was kept alongwith the grocery items. The charas and poppy straw was sealed in ::: Downloaded on - 30/09/2020 20:19:35 :::HCHP ...4...
separate cloth parcels with seven seals of seal impression .
"D". NCB form in triplicate was filled in and the seal after use was handed over to witness Arun Katoch. The charas and poppy straw were taken into possession vide separate memo. Rukka was sent to the Police station through HHC Parvinder Kumar upon investigation, Investigating Officer prepared the spot map and recorded the statements of the witnesses. The appellant was arrested. Case property was produced before the SHO, Police Station, Nurpur for resealing, who resealed the same with three seals of seal impression "K" and filled in the relevant columns of NCB form. Case property was sent to Forensic Science Laboratory for chemical analysis. On receipt of FSL report, samples were found to be that of charas and poppy straw. After completion of investigation challan was prepared under Section 173 of Cr. P.C. and presented in the Court of Special Judge (II) ::: Downloaded on - 30/09/2020 20:19:35 :::HCHP ...5...
Kangra at Dharamshala, Distt. Kangra, HP for judicial .
verdict.
2. The accused was charged for committing, an, offence punishable, under Sections 15 and 20, of, the ND & PS Act. In proof of the prosecution case, the prosecution examined fifteen witnesses. On conclusion of recording, of, prosecution evidence, the statement of the accused, under, Section 313 Cr.P.C. was recorded, by the trial Court, wherein, he claimed false implication.
3. On an appraisal of evidence on record, the learned trial Court, recorded findings, of, conviction against the accused/appellant herein.
4. The appellant, is, aggrieved by the judgment of conviction, and consequent therewith sentence(s), recorded upon him, by the learned Special Judge-II, Kangra at Dharamshala, District Kangra (HP). The learned counsel appearing for the appellant, has concertedly, and, vigorously contended qua the findings ::: Downloaded on - 30/09/2020 20:19:35 :::HCHP ...6...
of conviction, recorded by the learned Special Judge, .
standing not, based on a proper appreciation, by him, of the evidence on record, rather, theirs standing sequelled by gross mis-appreciation, by him, of the material on record. Hence, he contends qua the findings of conviction being reversed by this Court, in the exercise findings of acquittal.
r to of its appellate jurisdiction, and, theirs being replaced by
5. On the other hand, the learned Additional Advocate General, has with compatible force and vigour, contended that the findings of conviction became recorded by the Court below, standing based on a mature and balanced appreciation of evidence, on record, and, theirs not necessitating any interference, rather theirs meriting vindication.
6. This Court with the able assistance of the learned counsel, on either side, has, with studied care and incision, evaluated the entire evidence on record.
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7. Through memo, drawn in Ext. PW1/D, Charas, .
Ext. P-2, and, poppy straw Ext. P-5, became recovered from the apposite shop. A sealed cloth parcel, borne in Ext. P-4, enclosed therewithin, the, recovered Charas, Ext. P-2, and, poppy straw, marked, as, Ext. P-5, as became enclosed within plastic bag, Ext. P-6,and, both the afore became enclosed, in a cloth parcel, Ext. P-4.
Upon both the afore cloth parcels, Ext. P-1 and Ext. P-4, as evident, on a reading, of, the proven NCB form, embodied in Ext. PW8/A, the Investigating Officer, through signatured recital(s), made thereins, hence embossed respectively, upon Ext. P-4 and upon Ext. P-1, hence 7 seals, each of, English alphabet "D". The afore made embossing(s), respectively, upon Ext. P-4, and, upon Ext. P-1, were made at the site of occurrence. The afore made embossing(s), hence respectively upon Ext.
P-4 and upon Ext. P-1, at the site, of, occurrence, do, carry, as imminent on a reading, of, the seizure memo, ::: Downloaded on - 30/09/2020 20:19:35 :::HCHP ...8...
borne in Ext, PW1/D, all the apposite congruities qua .
therewith, specifically appertaining to the numbers, of, English alphabet(s), as well as, the designations, to the seal impression(s), hence embossed, upon, both the cloth parcels, Ext. P-1 and Ext. P-4. Upon, the afore cloth parcels, becoming transmitted, to the Police Station concerned, thereat, as evident on a reading, of, the proven NCB form, borne in Ext. PW8/A, the SHO concerned, respectively, made/pasted thereupon(s), three re-seal impression(s), each carrying thereon(s), the English alphabet "K. Through road certificate, borne in Ext. PW8/D, both the afore cloth parcles, became transmitted to the FSL concerned, and, thereon(s), the chemical examiner, working thereat, renders an opinion thereon, vis-à-vis, the contents borne in both the sealed parcels, being respectively, Charas, and, poppy straw.
Furthermore, in the report, of, the FSL, borne in Ext. P-
X, there is a narration, vis-à-vis, the seal impression(s), ::: Downloaded on - 30/09/2020 20:19:35 :::HCHP ...9...
as, became embossed, on the two cloth parcels, as .
became sent thereat, for examination, each carrying the number(s), of, seal impressions, and, also the English alphabet(s), embossed thereon(s), and, rather theirs' bearing compatibility, with, the narration(s), borne, in the NCB form, embodied in Ext. PW8/A, reiteratedly, both with respect to the numbers, of, seal impressions, as echoed therein(s), and, also, vis-à-vis, the numbers, of, re-seal seal impressions, made thereon, and, besides, vis-
à-vis, the English alphabet(s), embossed thereon(s), and, as become(s) echoed in NCB form, borne in Ext. PW8/A. Even though, proof, vis-à-vis, the afore memo(s),becomes testified by the Investigating Officer, and, also by PW-8, who had authored the afore road certificate, whereupon, an inference becomes aroused, vis-à-vis, (i) qua upto the arrival, of, the case property at the FSL concerned, hence all the afore congruities, and, similarities, inasmuch as, vis-à-vis, the numbers, of, seal(s), made upon each, of, ::: Downloaded on - 30/09/2020 20:19:35 :::HCHP ...10...
the two cloth parcel(s)/seals(s), and, vis-à-vis, the .
number(s), of, re-seal impression(s), borne upon each, of, the afore two cloth parcel(s), (ii) besides qua the English alphabet(s), respectively made thereon(s), by the Investigating Officer, and latter by the SHO concerned, rather all hence remaining alive, and, intact. However, the afore connectivity(s), hence commencing from the stage, of, recovery, of, case property, from the site, of, occurrence, through memo borne in Ext. PW1/D, upto its travelling, to the FSL concerned, would not perse erect, any firm and formidable opinion, qua therethrough, the prosecution invincibly discharging the onus, of, efficaciously proving the charge, against the accused, (iii) unless upon production of, the case property, in Court, and its' thereafter becoming shown, to the prosecution witnesses concerned, both cloth parcels, Ext. P-1 and Ext. P-4, rather make vivid voicing(s), hence, appertaining to all the occurrence(s) thereat, of, the afore ::: Downloaded on - 30/09/2020 20:19:35 :::HCHP ...11...
apposite congruities and similarities. However, all the .
official prosecution witnesses, in their respectively made testification(s), made un-equivocal echoing(s), where through they proved, the, afore apposite compatible echoing(s), borne in Ext. PW1/A, and the one(s), borne in NCB form(s), hence embodied in Ext. PW8/A. Furthermore, upon the production, of, the case property in Court, and thereat, it becoming shown to PW-1, the learned trial Court, recorded qua therewith, the hereinafter, extracted observation(s):
At this stage, ld. APP for the State produced one sealed parcel with seal impression "K" three in numbers and seven seals of "D" and seals of FSL three in number. Seals are found intact and tallied with specimen seal impression.
Request of learned PP to open the parcel is considered and allowed.
On opening parcel P-1 one polythene envelope containing Charas was taken out. I have seen the Charas Ext. P-2 which was recovered from ::: Downloaded on - 30/09/2020 20:19:35 :::HCHP ...12...
the counter of shop of the accused. I have also seen polythene envelope Ext. P-3, in which it was .
recovered and again placed in the same and sealed in parcel Ext. P-1. The parcel Ext. P-1 also bears my signatures alongwith signatures of independent witnesses and accused.
At this stage, Ld. PP for the State produced one sealed parcel with seal impression "K" three in numbers and seven seals of "D" and seals of FSL five in r number. Seals are found intact and tallied with specimen seal impression. Request of ld. PP to open the parcel is considered and allowed.'
8. A perusal, of, the hereinabove extracted Court observation(s), as made, during the course, of, recording, of, the deposition of PW-1, do un-earth, vis-à-vis, both the cloth parcels, respectively, borne in Ext. P-1, and borne in Ext. P-4, rather upon each(s) becoming ::: Downloaded on - 30/09/2020 20:19:35 :::HCHP ...13...
opened, hence, therefrom(s) respectively Charas, and .
poppy straw, becoming un-earthed, (i) and, also upon each(s) of the afore cloth parcel(s), hence occurring, three seal impression(s),of, English Alphabet "k", and also, thereon(s), three seal(s), of, the FSL, becoming embodied.
Despite the afore Court observation(s), becoming made, 1, and, r to during the course, of, recording of the deposition, of, PW-
observations, whereof, palpably, link the existence(s), thereat, of, the apposite congruities, and, connectivities, appertaining to the numbers, of, seal impression(s), made on each, and also qua designation(s) thereon, of English alphabet "K", besides appertaining to, the number(s), of, seal impression(s), hence embossed thereon, by the FSL concerned, (i) yet the learned defense counsel, despite his being present, at the afore stage, did not, contest the afore apposite similar thereat occurrence(s), thereon, nor contested the authenticity, of, the afore made Court observation(s), and, appertaining to ::: Downloaded on - 30/09/2020 20:19:35 :::HCHP ...14...
the afore seal impression(s), becoming respectively, .
pasted upon each(s), of, the afore two cloth parcels, and,
(ii) nor vis-à-vis, one seal impression, of, the FSL, becoming made thereon, nor obviously, was able to make any voicing(s), vis-à-vis, the afore cloth parcels, in contemporaniety, vis-à-vis, theirs becoming produced, Court is r to theirs being tampered or un-intact. In aftermath, this constrained to conclude, that, the apt connectivity, vis-a-vis, the afore, imperative, factum, becoming un-flinchingly proven, and, the, afore connectivity, as, commencing from the date of seizure, of, the case property, at the site of occurrence, and, its surviving upto its production, in Court. All the official witnesses supported the testification, rendered by PW-1.
9. However, nowat, the effect, of, independent witnesses, to, the drawing, of, recovery memo Ext.PW-
1/D, reneging from their respectively made previous statement(s) in writing, is, to be construed alongwith, the ::: Downloaded on - 30/09/2020 20:19:35 :::HCHP ...15...
factum of their, in their respective cross-examination(s), .
whereto they stood subjected, to, by the learned Public Prosecutor, "on" theirs, standing declared hostile, hence admitting the factum of their authentic signatures occurring thereon. Consequently, when they admit the occurrence of their authentic signatures, on the relevant memo(s), and, also upon cloth parcels, borne in Ext. P-1 and Ext. P-4, thereupon the mandate of Section 91 and 92 of the Indian Evidence Act, becomes attracted, (i) whereupon they "on" admitting the occurrence of their signatures thereon, hence become statutorily estopped to renege, from, all the recital(s) borne thereon, (ii) thereupon the effect of their orally deposing in variance or in detraction of the recitals which occur therein, gets statutorily belittled, (ii) rather when they naturally hence emphatically rather statutorily, prove(s) all the recitals, comprised, in, the apposite memo(s), (iii) thereupon theirs orally reneging, from, the recitals ::: Downloaded on - 30/09/2020 20:19:35 :::HCHP ...16...
borne thereon "holds no evidentiary clout" nor it is .
legally apt to outweigh, the creditworthiness of the testimony(s), of, the official witnesses, qua the recovery of contraband, as, made under recovery memo Ext. PW1/D, and its making bespeaking(s), vis-à-vis, it standing effectuated, from, the conscious and exclusive possession, of, the uncontroverted factum, of r to accused. In sequel, their authentic signatures, the occurring on the relevant exhibits, and, upon cloth parcels, Ext. P-1 and Ext. P-4, concomitantly renders the apposite recitals borne thereon(s) rather to hold, the, gravest probative worth. The ensuing sequel thereof, is that with the statutory estoppel constituted in Sections 91 and 92 of the Indian Evidence Act, barring, the, independent witnesses' concerned to orally resile, from, the contents of Ext.PW-1/D, especially when they admit qua their authentic signatures occurring thereon, rather renders unworthwhile besides insignificant, the factum ::: Downloaded on - 30/09/2020 20:19:35 :::HCHP ...17...
qua their orally deposing, in variance, vis-à-vis, of its .
recorded recitals, (ii) thereupon per se an inference stands enhanced qua dehors theirs reneging from their previous statement(s) recorded in writing, a, deduction(s) standing capitalized qua thereupon their proving rather the genesis of the prosecution case.
10. Be that as it may, the vigour of the aforesaid conclusion, would stand benumbed, only when evidence exists on record, with respect to the independent witnesses concerned, standing pressurized or coerced, by the Investigating Officer concerned, "to" emboss their signatures, upon, seizure memo Ext.PW-1/D. However, the independent witnesses concerned, through their testification(s), make an attempt to communicate, that, their signatures thereon were obtained, despite, contents thereof being not read over to them, yet, the aforesaid communication, "is bereft of any vigour", especially when they "do not" make, any unveilings in their respective ::: Downloaded on - 30/09/2020 20:19:35 :::HCHP ...18...
testification(s), (i) that, in the Investigating Officer .
concerned purportedly omitting to read over to them, the contents, of, the aforesaid exhibits, "besides", hence their obviously without understanding their contents, their appending their signatures thereon, whereas, embossing(s) thereon by them, of, their signatures, exerted upon r to "hence spurring" from compulsion or duress standing them, by the Investigating Officer "importantly" also when in respect thereof, they omitted to record a complaint, with the Officer(s) superior to the Investigating Officer concerned. However, all the afore evidence, is, amiss hereat. Consequently, the effect of the aforesaid communications, occurring in the testification(s), of, the independent witness, does not, belittle, the hereinabove drawn inference, anvilled upon attraction, "upon" the admitted factum, of their authentic signatures, hence occurring on Ext.PW-1/D, rather "the" mandate of Section 91 and 92, of, the Indian ::: Downloaded on - 30/09/2020 20:19:35 :::HCHP ...19...
Evidence Act, (iii) thereupon dehors their making the .
aforesaid frail attempt(s), rather for belying the recitals, borne in Ext.PW-1/D, theirs rather hence statutorily proving, all the recitals occurring therein.
11. Conspicuously, the deposition of, PW-8, as occurring in his examination-in-chief, makes echoing(s), bearing, the, completest concurrence, vis-à-vis, (a) the case property, comprising, two cloth parcel(s), hence becoming deposited before him, by ASI Mulk Raj, (i) however, thereonwards, he also deposes, vis-à-vis, on each, of, the cloth parcel(s), 7 seal impression(s),of, English alphabet "D", and, three re-seal impression(s), of, English alphabet "K", becoming embossed thereon.
Prominently, when he also echoes, in his examination-
in-chief, vis-à-vis, upon, each, of, the afore parcel(s), .
the afore seal impressions(s), besides, re-seal, seal impression(s), bearing compatibility, vis-à-vis, the corresponding thereto hence echoing(s), made in the ::: Downloaded on - 30/09/2020 20:19:35 :::HCHP ...20...
seizure memo, embodied in Ext. PW1/D, also rather .
becoming borne thereon(s). Furthermore, with PW-8, proving the abstract, of, Mallkhana Register, borne in Ext. PW8/C, and, his also testifying qua his making the endorsement, encircled in Ext. PW8/B, upon, the NCB form, embodied in Ext. PW8/A, ii) thereupon, the defense cannot coax this Court, to, infer qua, at any stage, their occurring tampering(s), with the case property.
12. However, the learned counsel, appearing for the convict, has, made vociferous submission(s), before this Court (i) that since, prior to the preparation, of, the seizure memo, borne in Ext. PW1/D, the police officials, hence carrying his personal search, thereupon, a dire statutory necessity, becomes cast upon the Investigating Officer, to, evince his apposite consent. He also submits that since the apposite consent, purveyed by the accused, to, the Investigating Officer, is, infirm, in law, thereupon, the entire proceedings, conducted at the site ::: Downloaded on - 30/09/2020 20:19:35 :::HCHP ...21...
of occurrence, becoming vitiated. However, the afore .
made submissions, carries no weight, inasmuch as, the apposite recovery has not become effectuated, upon the accused, carrying upon his person, or tethering thereonto, the recovered contraband, rather when the recovery became effectuated at the apposite Karyana shop, thereupon, there was no statutory necessity, to, even proceed to draw Ext. PW1/A, exhibit whereof, is, an apposite consent memo, (iii) wherethrough(s), through signatured writing(s), hence scribed by the accused, respectively, within circle "C" and "D" thereof, (iv) he had meted his consent for his personal search, becoming conducted by the Investigating Officer. Since, the scribing(s), borne, within circle "D", of, Ext. PW1/A, become scribed by the accused, and reading(s) thereof, unveil, qua his meteing, the, apposite consent to the Investigating Officer, to, conduct a personal search, upon him, (v) and with the accused, not challenging the ::: Downloaded on - 30/09/2020 20:19:35 :::HCHP ...22...
afore signatured scribing(s), as, purportedly, made in his .
hands, (vi) thereupon, it has to be inferred, vis-à-vis, though un-necessary compliance, as becomes meted by the Investigating Officer, vis-à-vis, the mandate borne, in Section 50 of the ND and PS Act, rather therethrough(s), the afore mandate also becoming completely complied with.
13. to Needless to say that assuming, even if, some minimal deviation(s), occurred in drawing, of, Ext.
PW1/A, or occurred, in, the purported minimal deviation(s), being made, from the statutory requirement(s), borne in Section 50, of, the ND & PS Act, yet effect thereof, rather becomes, minimized from, the, imperative trite factum, of, the, recovery(s), not being made from the personal search, of, the accused, rather theirs being made from the apposite Karyana Store.
Further more, even if assuming the recovery, of, Charas, weighing, 1 kg and 200 gm, became falsely made from ::: Downloaded on - 30/09/2020 20:19:35 :::HCHP ...23...
the apposite Karyana Store, despite it being a sequel, of, .
the police personals, carrying the afore charas, upon their person, (ii) yet the tenacity, if any, of the afore inference, becomes denuded, from the un-contested, and, un-challenged echoing(s), embodied in Ext. PW1/A, exhibit whereof, is, the jamatalashi memo, borne in Ext.
PW1/B, hence prepared in the presence, of, witnesses thereto, and as became conducted, also in the presence, of, the apposite witnesses, hence by the accused, and, upon the persons, of, the police officials concerned, (ii) wherein(s), the item(s) disclosed to be un-earthed, from, the persons, of, each of the police officials, rather are not incriminatory articles, qua wherewith, a charge became drawn, against the accused. In sequel, the accused cannot contend that the Charas, weighing 1 kg 200 gms, became introduced, onto the apposite Karyana store, by the police officials, despite, it being carried upon their ::: Downloaded on - 30/09/2020 20:19:35 :::HCHP ...24...
respective person(s), or, in contemporaneity, vis-à-vis, the .
drawing, of, seizure memo, borne in Ext. PW 1/D.
14. Moreover, the learned counsel for the convict has also cast an onslaught, vis-à-vis, the neutrality, of, the investigation(s), hence conducted by the Investigating Officer, and his afore made address, is, centered, upon the factum of, PW-14, in his examination, -in-chief, accepting the factum of his, and, other police officials, having a scuffle with the parents and brothers of the accused, and qua therewith, an FIR bearing No. 191 of 2015, becoming lodged with the Police Station, Nurpur, on 6.7.2015, under Sections, 21-61-85, and Sections 353, 332 and 334 of the IPC, at his instance, (i) especially when the afore factum, is, corroborated by PW-4.Even though, the afore does, prima-facie, makes an echoing(s), vis-à-vis, an iota, of, inimicality, becoming engendered by PW-14, against the parents and brother, of, the accused. However, therefrom, no conclusion, can ::: Downloaded on - 30/09/2020 20:19:35 :::HCHP ...25...
become aroused, vis-à-vis, the afore also inviting the .
vendetta, of, PW-14, against the accused, (ii) as the vendetta, if any reared by PW-14, against the relative(s),of the accused, would not become wreaked, upon the accused, rather would become wreaked, upon the parents and brother, of, the accused. Even otherwise, 191 of 2015, r to there is no evidence on record, vis-à-vis, FIR bearing No. as became earlier registered by PW-14, against the parent(s) and brother, of, the accused, becoming concluded to be a sequel, of, vindictiveness, and, vendetta, reared by PW-14, against the parents and brother, of, the accused, thereupon, the afore made addresses become rudderless. Since echoing(s), do not, occur in the statement, of, PW-1 ASI Tilak Raj, besides in the statement(s), of, the independent witnesses, who became joined in the relevant proceedings, vis-à-vis, PW-
14, making a false and vindictive search, of the Karyana Store, and in sequel thereof, his hence falsely drawing ::: Downloaded on - 30/09/2020 20:19:35 :::HCHP ...26...
the seizure memo, borne in Ext. PW1/D, (i) thereupon .
merely upon the earlier FIR, becoming registered, against the brother and parents, of, the accused, would not, coax any conclusion, qua therefrom the prosecution case foundering. Conspicuously, also with none of the prosecution witnesses, except, PW-4 andPW-14, holding knowledge, vis-à-vis, the earlier lodged FIR, and theirs not making any articulation(s), in their respectively, made deposition(s), vis-à-vis, theirs becoming coached by PW-
14, to, ensure qua theirs hence making deployment(s), of, dis-ingenious mechanism(s), for roping the accused in a false case. The omission, of, the afore echoing(s) also are, inferred to strengthen, the afore made conclusion, vis-à-
vis, the earlier made FIR, not constituting the spring board, for the police official(s), to, purportedly falsely implicate, the accused.
15. In addition, the learned counsel for the convict/accused, has made a vehement espousal, before ::: Downloaded on - 30/09/2020 20:19:35 :::HCHP ...27...
this Court, that since PW-9, PW-11 and PW-12, in their .
respectively made previous statements in writing, wherein, they had identified the apposite Karyana Shop, to be in the possession of, the accused, yet during their testification(s), their reneging therefroms), hence, effect(s) thereof(s), being (a), accused not being in valid possession of, the Karyana Shop and (b) hence, the recovery as made therefrom, being falsely strived. However, the afore made submissions, become rudderless, from, the trite factum, of, the owner, of, the premises, not being proved to lodge an FIR against the accused, for his trespassing in the relevant premises, and, nor his becoming examined, to make any deposition, vis-à-vis, the accused being in possession, of, the premises. In aftermath, for wants, of, the afore evidence, it becomes concluded that dehors Pawan Kumar, being recorded, as, owner in possession of, the relevant premises, yet the afore omission(s), constraining this Court, to, draw an inference, vis-à-vis, ::: Downloaded on - 30/09/2020 20:19:35 :::HCHP ...28...
the accused, at the relevant time, being inside the .
relevant shop, and, also, his at the relevant time, being in de facto possession, of, the premises. Moreover, also all the afore proven link evidence(s), belies the merit, if any, of the afore made submissions, before this Court.
Paramountly, the Hon'ble Apex Court, in a judgment, rendered in case titled, as "Jeet Ram versus the Narcotics Control Bureau, Chandigarh, in Criminal Appeal No. 688 of 2013, making an expostulation, of, law, vis-à-vis, the apt onus, becoming cast upon the convict, to explain, the, apposite possession, of, the relevant premises, at the relevant time, and upon failure, of, his discharging the afore onus, as, has happened hereat, (i) thereupon, the presumption, borne in Section 54, of, the ND & PS Act, becoming drawn against him, does also, de-facilitate(s), the counsel for the convict to make the afore address, rather this Court, is, constrained ::: Downloaded on - 30/09/2020 20:19:35 :::HCHP ...29...
to infer qua the convict, being in possession, of, the .
relevant premises, hence, at the relevant time.
16. Lastly, the learned counsel for the accused, has depended upon an echoing, occurring in paragraph-
10, of, Ext. P-X, exhibit whereof is the report of, the, FSL, wherein, charas, is stated to be in the form of, polywrapped balls and unwrapped sticks, description, whereof, bears purported dis-similarity to the description, qua therewith, as made in the seizure memo, (i) and hence, he makes a submission, that the afore made dis-
similarity(ies), of description, renders an opinion qua no credibility being fastenable, upon the report, of, the FSL,borne in Ext. PX. However, the afore made submission, is, straightway rejected, as the seizure memo, borne in Ext. PW1/D, makes a description, vis-à-
vis, charas, being, in the form, of, polywrapped balls and unwrapped sticks, hence, the afore description does bear ::: Downloaded on - 30/09/2020 20:19:35 :::HCHP ...30...
compatibility, vis-à-vis, the description qua the form, of, .
Charas, as made in Ext. P-X.
17. For the reasons which have been recorded hereinabove, this Court holds that the learned trial Court has appraised the entire evidence, on record, in a wholesome and harmonious manner, and, the analysis thereof, by the learned trial Court, hence does not suffer, from, a perversity or absurdity of mis-
appreciation and non-appreciation, of evidence, on record.
18. There is no merit in the appeal, and, the same is dismissed. The impugned judgment is affirmed and maintained. The records be sent down forthwith.
(Sureshwar Thakur) Judge (Chander Bhusan Barowalia) Judge 30.9.2020 ::: Downloaded on - 30/09/2020 20:19:35 :::HCHP ...31...
(kalpna) (kalpana) .
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