Himachal Pradesh High Court
Kartar Singh Son Of Sh Tula Ram vs State Of H.P. R on 30 May, 2015
Bench: Sanjay Karol, P.S. Rana
IN THE HIGH COURT OF HIMACHAL PRADESH,
.
SHIMLA:
Cr. Appeal No. 105 of 2013.
Judgment reserved on: 13.5.2015
Date of Judgment: May 30, 2015.
____________________________________________________________
Kartar Singh son of Sh Tula Ram. .....Appellant.
Vs.
State of H.P. r .....Respondent.
Coram:
Hon'ble Mr. Justice Sanjay Karol, Judge.
Hon'ble Mr.Justice P.S.Rana, Judge.
Whether approved for reporting1?yes.
For the appellant: Mr. Manoj Pathak, Advocate.
For the respondent: Mr.Ashok Chaudhary,
Mr.V.S.Chauhan, Addl. Advocate
Generals with Mr.J.S.Guleria, Asstt.
Advocate General.
P.S.Rana, Judge.
JUDGMENT:Present appeal is filed against the judgment and sentence passed by learned Special Judge Fast Track Whether reporters of the Local papers are allowed to see the judgment?yes.
::: Downloaded on - 15/04/2017 18:17:38 :::HCHP 2Court Shimla HP in Session Trial No. 21-S/7 of 2011 titled .
State of HP Vs. Kartar Singh decided on 31.8.2012.
BRIEF FACTS OF THE PROSECUTION CASE:
2. Brief facts of the case as alleged by prosecution are that on dated 1.5.2011 at about 2.15 PM near Hasan valley accused was travelling in bus No. HP-22B-2087. It is further alleged by prosecution that accused was sitting on seat No. 37 and bus was coming from Rampur side and was approaching towards Shimla. It is further alleged by prosecution that Inspector Minakshi received secret information on dated 1.5.2011 at 12.30 PM that one person wearing black coloured jean trouser and having brown colour bag was coming to Shimla side in bus No HP-22B-2087 with charas in his possession. It is further alleged by prosecution that thereafter Inspector Minakshi recorded information under Section 42 (2) of the Narcotic Drugs & Psychotropic Substance Act 1985 and sent the same through HC Devinder to SP Crime Branch Shimla. It is further alleged by prosecution that thereafter Inspector Minakshi constituted a raiding party by associating HC Balbir Singh, Constable Praveen Kumar and Constable Vikesh Guleria and moved towards Kufri-Theog side ::: Downloaded on - 15/04/2017 18:17:38 :::HCHP 3 on official vehicle No. HP-07B-0324 which was driven by .
constable Brij Lal vide rapat No.8 (A) Ext PW1/H. It is further alleged by prosecution that thereafter Inspector Minakshi had given her introduction to the driver of the bus. It is further alleged by prosecution that Inspector Minakshi started checking passengers from seat No.1 and when she reached at seat No. 37 then she noticed that accused was carrying contraband. It is further alleged by prosecution that accused was apprised about his legal right to be searched before the magistrate or gazetted officer. It is alleged by prosecution that accused had given his consent that he should be searched by police official at the spot and consent memo Ext PW5/B was prepared. It is further alleged by prosecution that accused was carrying bag on his leg and was sitting at seat No.37 of the bus. It is further alleged by prosecution that 2.100 Kg. charas was found from exclusive and conscious possession of accused. It is further alleged by prosecution that thereafter charas was sealed and NCB form was prepared. It is further alleged by prosecution that specimen of seal on NCB form was obtained on pieces of cloth and seal was handed over to witness Sunil Kumar. It is further alleged by prosecution that ::: Downloaded on - 15/04/2017 18:17:38 :::HCHP 4 thereafter site plan was prepared and statements of the .
witnesses were recorded. It is further alleged by prosecution that thereafter special report was sent to SP Crime Branch Shimla through HC Devinder. It is further alleged by prosecution that thereafter on dated 2.5.2011 MHC handed over parcel containing charas, NCB-1 form and other relevant documents to HC Neel Kanth vide RC No. 27/11 Ext PW1/E with direction to deposit the same in the office of FSL Junga.
It is further alleged by prosecution that articles were deposited in the office of FSL Junga and receipt was obtained. Charge was framed by learned Special Judge Fast Track Court Shimla on dated 18.8.2011. Accused did not plead guilty and claimed trial.
3. Prosecution examined following oral witness and accused adduced following defence witness in support of defence.
Sr.No. Name of Witness
PW1 HC Prakash Chand
PW2 HC Neel Kanth
PW3 HC Devinder
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5
PW4 Vijay Bhuria
.
PW5 HC Balbir Singh
PW6 Bahadur Singh
PW7 Inspector Minakshi
DW1 Sunil Kumar
4. Prosecution also produced following piece of documentary evidence in support of its case:-
Sr.No. Description:
Ext.PW1/A FIR
Ext.PW1/B Sample Seal
Ext.PW1/C Resealing certificate
Ext.PW1/D Entry No.41
Ext.PW1/E RC
Ext.PW1/F,G & Rapats
Ext.PW1/J Certificate u/s 65 of Evidence
Act.
Ext.PW4/A Route permit
Ext.PW4/B Copy of time table
Ext. PW5/A Memo U/S 50 of the Act
Ext.PW5/B Identification memo
Ext.PW5/C Seizure memo
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6
Ext.P1 Parcel
.
Ext.P2 Inner parcel
Ext.P3 Rexen bag
Ext.P4 Yellow coloured tape
Ext.P5 Card board box
Ext.P6 Charas
Ext.PW6/A Search memo
Ext.PW6/B Memo
Ext.PW6/B-1 Personal search memo vide
which tickets were recovered
from the accused.
Ext.PW6/C
r Specimen seal
Ext.PW7/A Special information report
Ext.PW7/B NCB Form
Ext.PW7/C Rukka
Ext.PW7/D Site Plan
Ext.PW7/E Arrest memo
Ext.PW7/F Special report
Ext.PW7/G FSL Report
Ext.P7 Mobile phone
Ext.P8 ID card
Ext.P9 Voter ID card of accused
Ext.P10 Currency notes
Ext.P11 Valet
Ext.P12 Envelope
5. Statement of accused was also recorded under Section 313 Cr PC. Learned trial Court convicted appellant to rigorous imprisonment for a period of ten years and fine to the tune of Rs.1,00,000/- (One lac) . Learned trial Court further ::: Downloaded on - 15/04/2017 18:17:38 :::HCHP 7 directed that in default of payment of fine appellant shall .
further undergo simple imprisonment for a period of one year.
6. Feeling aggrieved against the judgment and sentence passed by learned Special Judge Fast Track Court Shimla appellant filed present appeal.
7. We have heard learned Advocate appearing on behalf of the appellant and learned Additional Advocate General appearing on behalf of respondent and also gone through the entire record carefully.
8. Point for determination before us is whether learned trial did not properly appreciate oral as well as documentary evidence placed on record Court and whether learned trial Court had committed miscarriage of justice to appellant.
9.ORAL EVIDENCE ADDUCED BY PROSECUTION:
9.1 PW1 Prakash Chand has stated that he was posted as MHC in Police Station State CID Shimla since November 2009. He has stated that on dated 1.5.2011 at 5.45 PM HC Balbir Singh handed over one rukka mark 'A' to him along with parcel containing charas, NCB-I form in triplicate, sample seal and recovery memo. He has stated that he ::: Downloaded on - 15/04/2017 18:17:38 :::HCHP 8 registered FIR Ext PW1/A which bears his signature. He has .
stated that he prepared case file and handed over the same to HC Balbir Singh with direction to hand over the same to Inspector Minakshi. He has stated that as no superior officer was present in police station so he resealed parcel with nine seals of seal impression 'P'. He has stated that he prepared certificate regarding resealing of parcel. He has stated that he deposited case property i.e. parcel, NCB form, recovery memo and sample seals in the malkhana and entry at serial No. 41 was recorded. He has stated that extract of register No.19 Ext PW1/D is true copy of original record. He has stated that on dated 2.5.2011 he handed over case property to HC Neel Khanth vide RC No. 27/11 Ext PW1/E which is also true copy of original record. He has stated that thereafter article was deposited at FSL Junga and on the same day HC Neel Khanth had handed over the receipt which was in red circle. He has stated that case property remained intact in his custody. He has denied suggestion that rapat Ext PW1/F to Ext PW1/H were prepared at later stage. He has denied suggestion that case property was not deposited with him on dated 1.5.2011.
He has denied suggestion that no parcel was resealed by him.
::: Downloaded on - 15/04/2017 18:17:38 :::HCHP 9He has denied suggestion that case property was not sent in .
the office of FSL Junga for chemical examination. He has denied suggestion that resealing certificate was prepared later on just to create evidence against accused.
9.2 PW2 Neel Khanth has stated that he was posted as Head Constable in police station State CID since last four years. He has stated that on dated 2.5.2011 MHC handed over one parcel which was sealed with nine seals of seal impression 'P' along with NCB form, recovery memo and sample seal vide RC No.27/2011 with direction to deposit the same in the office of FSL Junga. He has stated that thereafter he deposited parcel in the office of FSL Junga and handed over receipt to MHC on the same day. He has stated that case property remained intact in his custody. He has denied suggestion that no case property was handed over to him. He has denied suggestion that he did not deposit case property in the office of FSL Junga. He denied suggestion that documents were later on prepared just to create evidence in the present case.
9.3. PW3 Devinder has stated that he was posted as Head Constable in police station State CID since 2010. He has stated that on dated 1.5.2011 Inspector Minakshi police ::: Downloaded on - 15/04/2017 18:17:38 :::HCHP 10 station CID Shimla handed over special information report to .
him with direction to take same to SP Crime Branch Shimla and handed over the same to Inspector Minakshi. He has stated that on dated 2.5.2011 he took special report to the office of SP Crime Branch Shimla and handed over the same to Reader and obtained receipt. He has denied suggestion that special report was not handed over to him by Inspector Minakshi. He denied suggestion that he did not hand over special report to SP Crime Branch Shimla.
9.4 PW4 Vijay Bhuria has stated that he was posted as Sr. Assistant in RTO office Hamirpur and he brought record pertaining to bus No. HP-22B-2087. He has stated that the route of the bus was from Pragpur to Theog. He has stated that copy of the route permit and time table are Ext PW4/A and Ext PW4/B which are correct as per original record.
9.5 PW5 HC Balbir Singh has stated that he was posted as Investigating Officer in Police Station CID Shimla w.e.f. 2009. He has stated that on dated 1.5.2011 he along with Constable Sunil and Constable Vikesh under the supervision of Inspector Minakshi approached towards Theog-
Kufri side in official vehicle No. HP-07B-0324 which was ::: Downloaded on - 15/04/2017 18:17:38 :::HCHP 11 driven by Brij Lal. He has stated that at about 2.15 PM when .
they reached near Hasan valley then vehicle having registration No. HP-22B-2087 was stopped. He has stated that Inspector Minakshi disclosed her identity to the driver and conductor of the bus. He has stated that driver of the bus disclosed his name as Bahadur Singh and conductor disclosed his name as Sunil Kumar. He has stated that police officials gave their personal search and memo was prepared.
He has stated that thereafter driver and conductor of the bus were associated in the raiding party and thereafter search of the bus was conducted. He has stated that accused was sitting on seat No.37 of bus. He has stated that Inspector Minakshi apprised accused about his legal rights to be searched before Magistrate or gazetted officer. He has stated that accused has given his option to be searched before police official. He has stated that thereafter the bag which was in the possession of accused was searched. He has stated that charas to the quantity of 2.100 Kg. was found from the possession of accused. He has stated that thereafter parcel was sealed with ten seals of seal impression 'N' and NCB form was filled up. He has stated that seal after use and after ::: Downloaded on - 15/04/2017 18:17:38 :::HCHP 12 obtaining specimen of seal on piece of cloth was handed over .
to conductor of bus. He has stated that copy of seizure memo was supplied to accused free of cost. He has stated that thereafter Inspector Minakshi prepared rukka and handed over the same to him along with parcel containing charas, NCB form and sample seal with direction to take the same to police station CID Crime Branch Shimla and handed over case property and rukka to MHC Prakash Chand. He has stated that MHC Parkash Chand was officiating SHO at the relevant time. He has stated that after opening of rexen bag and card board box charas was found. He has stated that accused present in Court is the same person from whom possession of charas was recovered. He has denied suggestion that he did not give his personal search either to the driver or the conductor. He has denied suggestion that accused was falsely implicated in the present case. He denied suggestion that he deposed falsely in Court.
9.6 PW6 Bahadur Singh has stated that he is driver by profession and working as driver with Parmar RTC Hamirpur. He has stated that on dated 1.5.2011 he was coming from Rampur to Hamirpur and when the bus reached ::: Downloaded on - 15/04/2017 18:17:38 :::HCHP 13 at Hasan valley at about 1.45 PM then one vehicle belonging .
to police official came and asked the bus driver to stop the bus. He has stated that all police officials asked him to take personal search of police officials and thereafter he and conductor took personal search of police officials and no incriminatory material was found in their possession. He has stated that thereafter search memo Ext PW6/A was prepared which bears his signature in red circle. He has stated that two police officials boarded the bus from back side and other police officials boarded the bus from front door. He has stated that he was also accompanying with police officials. He has stated that at the time of search of bus police officials recovered one brown bag which was kept upon the lap by the passenger sitting on seat No.37. Witness was declared hostile.
In cross examination conducted by prosecution PW6 has stated that charas in the shape of wicks and marble recovered from person sitting on seat No.37 of bus. He has stated that accused told his name as Kartar Singh son of Tula Ram. He has stated that Kartar Singh son of Tula Ram had given his option to be searched before police officials. He has stated that charas was weighed with the help of scale which was found ::: Downloaded on - 15/04/2017 18:17:38 :::HCHP 14 2.100 Kg. He has stated that contraband was sealed with ten .
seals of seal impression 'N'. He has stated that NCB form was filled. He has stated that seal after use was handed over to conductor Sunil Kumar. He has stated that copy of seizure memo was supplied to accused free of cost. He has stated that site plan was prepared and his statement was recorded. He proved charas Ext P6 in the Court. He has stated that owner of bus came to the spot within one hour and he took the bus to its destination and he remained at the spot for two hours.
He has stated that police officials conducted search of all passengers and they remained inside bus throughout checking. He has stated that seat No.37 was just in front of back door. He has stated that one document was signed inside bus and rest of documents were signed outside but. He has denied suggestion that no incriminating substance was recovered from the passenger sitting on seat No.37. He has denied suggestion that police officials called him at Police Station Bharari and obtained signature on various documents just to create evidence against accused. He has denied suggestion that police officials obtained signatures on various documents at police station Bharari.
::: Downloaded on - 15/04/2017 18:17:38 :::HCHP 159.7. PW7 Inspector Minakshi has stated that on dated .
1.5.2011 when she was in police station CID at Bharari at 12.30 PM then she received secret information relating to contraband. She has stated that on the basis of information she prepared special report under Section 42 of NDPS Act.
She has stated that special information report was handed over to HC Devinder with direction to take the same to SP Crime Shimla. She has stated that after sending special information she along with HC Balbir, Constable Praveen Kumar, Constable Vikesh Guleria proceeded towards Kufri-
Theog on official vehicle No HP-07B-0324 which was driven by Constable Brij Lal. She has stated that when they reached near Hasan valley then she spotted bus No. HP-22B-2087 coming from Chharbra side and she gave signal to the bus to stop. She has stated that she gave her identification to the driver of bus. She has stated that driver of the bus disclosed his name as Bhadur Singh and conductor disclosed his name as Sunil Kumar. She has stated that thereafter driver and conductor were associated in raiding party. She has stated that she and police officials have also given their personal search and memo Ext PW6/A was prepared. She has stated ::: Downloaded on - 15/04/2017 18:17:38 :::HCHP 16 that she boarded the bus from front side and other four .
constables were deputed to check the passengers. She has stated that thereafter she started checking passenger from seat No.1. She has stated that accused was sitting upon seat No.37 of the bus. She has stated that she apprised the accused about his legal right to be searched before Magistrate or gazetted officer. She has stated that accused had given his option to be searched before police officials and consent memo Ext PW5/A was prepared. She has stated that charas was kept by accused in a bag. She has stated that charas was weighed and 2.100 Kg. charas was found from the possession of accused. She has stated that parcel of charas was sealed with ten seals of seal impression 'N' and NCB form was filled up in triplicate. She has stated that seal after use and after taking specimen of seal on pieces of cloth was handed over to witness Sunil Kumar. She has stated that she prepared rukka Ext PW7/C and handed over the same to HC Balbir Singh along with case property, NCB form in triplicate, recovery memo and specimen seal with direction to take the same to police station Bharari. She has stated that she prepared site plan Ext PW7/D and also recorded statement of witnesses ::: Downloaded on - 15/04/2017 18:17:38 :::HCHP 17 under Section 161 Cr.PC. She has stated that ground of arrest .
was informed to accused. She has stated that charas was recovered from accused. She has stated that special report was prepared and sent. She has stated that she received chemical analyst report from FSL Junga and thereafter challan was presented in Court after completion of investigation. She has denied suggestion that no charas was recovered from the accused. She has denied suggestion that all the documents were prepared later on at police station Bharari. She has denied suggestion that she did not disclose ground of arrest to accused.
9.8 Statement of accused Kartar Singh was recorded under Section 313 Cr.PC. He has stated that he was travelling in bus and coming from Rampur side on dated 1.5.2011. He has stated that police party stopped bus at Dhalli and asked the passengers to come down from the bus. He has stated that police officials took him to police station Dhalli. He has stated that one bag was already in the possession of police officials.
He has stated that police officials asked other four persons to go to their home and planted false case upon him.
::: Downloaded on - 15/04/2017 18:17:38 :::HCHP 189.9 Accused examined DW1 Sunil Kumar conductor .
of the bus as defense witness. DW1 Sunil Kumar has stated that in the year 2010-11 he remained conductor with Parmar bus service. He has stated that on dated 1.5.2011 he was conductor of the bus having registration No. HP-22B-2087 and bus was going from Hamirpur to Rampur. He has stated that bus started from Hamirpur at 6.30 AM and when he reached at Theog then he received telephone call from the owner of bus who directed to change the bus with another bus which was coming from Rampur to Hamirpur because the bus had developed some mechanical defect. He has stated that passengers alighted from bus No.1587 and boarded in bus No.2087 and sat on the seats as per their convenience. He has stated that there were about 47 passengers in the bus and in the meantime one jeep came from Theog side and jeep overtook bus No.HP-22B-2087 and asked the driver to stop the bus near Hasan valley. He has stated that police officials told him that they want to conduct search of the bus. He has stated that some police officials boarded the bus from front door and 3/4 police officials boarded the bus from rear door.
He has stated that thereafter bus was locked and police ::: Downloaded on - 15/04/2017 18:17:38 :::HCHP 19 officials asked 3/4 passengers sitting on the rear seats to .
come out of the bus. He has stated that police officials took up one bag from the rack and came out of bus. He has stated that police officials asked him and driver of bus to come to police station CID Bharari. He has stated that he along with driver and Manger of Parmar bus went to police station Bharari in the evening. He has stated that police officials obtained his signatures on some documents. He has stated that he does not know that accused present in Court was the same person who was apprehended by police officials. He has denied suggestion that bus No.2087 was coming from Rampur. Self stated that bus having registration No. 2087 started from Hamirpur to Rampur. He has admitted that accused was apprehended from bus No.2087 at Hasan valley.
He denied suggestion that he took money from accused for deposing in his favour.
10. Submission of learned Advocate appearing on behalf of the appellant that prior information received by police official was not sent to immediate police official as per Section 42(2) of the Narcotic Drugs & Psychotropic Substance Act 1985 and on this ground appeal filed by appellant be ::: Downloaded on - 15/04/2017 18:17:38 :::HCHP 20 accepted is rejected being devoid of any force for the reason .
hereinafter mentioned. PW7 Inspector Minakshi has specifically stated when she appeared in witness box that she prepared special information report Ext PW7/A under Section 42(2) of the Narcotic Drugs & Psychotropic Substance Act and thereafter handed over the same to HC Devinder with direction to hand over special information report prepared under Section 42 (2) of NDPS Act in the office of SP Crime Branch Shimla. Court has carefully perused testimony of PW3 HC Devinder. PW3 has specifically stated that PW7 Inspector Minakshi had handed over him special information report prepared under Section 42(2) of NDPS Act with direction to deposit the same in the office of SP Crime Branch Shimla and thereafter he handed over the same to SP Crimes Shimla at his residence. Testimony of PW7 Inspector Minakshi and testimony of PW3 HC Devinder relating to sending of special information report by PW7 Inspector Minakshi to her superior officer are trustworthy, reliable and inspire confidence of Court. There is no reason to disbelieve the testimony of PW7 Inspector Minakshi and PW3 HC Devinder relating to sending special information report prepared under Section 42(2) of the ::: Downloaded on - 15/04/2017 18:17:38 :::HCHP 21 Narcotic Drugs & Psychotropic Substance Act 1985 to SP .
Crimes Shimla. Even testimonies of PW7 Minakshi and PW3 HC Devinder are corroborated by documentary evidence Ext PW7/A placed on record.
11. Another submission of learned Advocate appearing on behalf of appellant that no information of ground of arrest was given to appellant as required under Section 52 of Narcotic Drugs & Psychotropic Substance Act 1985 and on this ground appeal filed by appellant be accepted is also rejected being devoid of any force for the reason hereinafter mentioned. PW7 Inspector Minakshi Investigating Officer has specifically stated in positive manner that information relating to ground of arrest was given to accused vide document Ext PW7/E placed on record. Court has carefully perused document Ext PW7/E placed on record. It is proved beyond reasonable doubt that information as required under Section 52 of the Narcotic Drugs & Psychotropic Substance Act 1985 relating to grounds of arrest was given to the appellant.
Testimony of PW7 Inspector Minakshi is corroborated by documentary evidence Ext PW7/E placed on record which remains un-rebutted on record.
::: Downloaded on - 15/04/2017 18:17:38 :::HCHP 2212. Another submission of learned Advocate .
appearing on behalf of appellant that no special report under Section 57 of NDPS Act relating to arrest and seizure of contraband was sent as required under law and on this ground appeal filed by appellant be accepted is also rejected being devoid of any force for the reason hereinafter mentioned.
Court has carefully perused the testimony of PW7 Inspector Minakshi. PW7 has specifically stated in positive manner that special report under Section 57 relating to arrest and seizure Ext PW7/F was sent to the office of SP Crime Shimla and special report Ext PW7/F placed on record is also proved on record in accordance with law. PW3 HC Devinder has specifically stated when he appeared in witness box that he took special report prepared under Section 57 of the NDPS Act relating to arrest and seizure in the office of SP Crime Branch Shimla. Testimony of PW7 Inspector Minakshi and testimony of PW3 Devinder corroborated with documentary evidence Ext PW7/F placed on record proved beyond reasonable doubt that special report prepared under Section 57 of NDPS Act relating to arrest and seizure was sent to SP Crime Branch Shimla in accordance with law.
::: Downloaded on - 15/04/2017 18:17:38 :::HCHP 2313. Another submission of learned Advocate .
appearing on behalf of appellant that compliance of Section 50 of the Narcotic Drugs & Psychotropic Substance Act 1985 was not effected in the present case and on this ground appeal be accepted is also rejected being devoid of any force for the reason hereinafter mentioned. Although in the present case consent of accused under Section 50 of the NDPS Act was obtained vide documentary evidence Ext PW5/A placed on record. It is the case of the prosecution that 2.100 Kg. charas was found from the exclusive and conscious possession of accused when accused was sitting on seat No.37 in bus having registration No. HP-2B-2087. It is the case of prosecution that charas to the quantity of 2.100 Kg. was recovered from the bag which was kept upon lap of the accused. It is well settled law that Section 50 of NDPS Act is attracted when the contraband is found from the person of accused. In the present case contraband was not found from the person of accused but contraband was found from the bag of the accused. It was held in case reported in 1999 (8) SCC 257 titled Kalema Tumba Vs. State of Maharashtra and another that when contraband was found from the bag then ::: Downloaded on - 15/04/2017 18:17:38 :::HCHP 24 compliance of Section 50 is not mandatory. Also See 2005 (4) .
SCC 350 titled State of HP Vs. Pawan Kumar. Also see 2011 Crl.L.J. 1738 titled Jarnail Singh Vs. State of Punjab.
14. Another submission of learned Advocate appearing on behalf of the appellant that in view of the testimony of PW6 Bahadur Singh driver of bus No. HP-22B-
2087 and in view of the testimony of DW1 Sunil Kumar conductor of bus No. HP-22B-2087 appeal filed by appellant be accepted is also rejected being devoid of any force for the reason hereinafter mentioned. We have carefully perused the testimony of PW6 Bahadur Singh driver and DW1 Sunil Kumar conductor of bus No. HP-22B-2087. PW6 Bahadur Singh was declared hostile by prosecution and thereafter he was cross-examined at length by prosecution. PW6 Bahadur Singh has stated in positive manner when he was cross examined by prosecution that when police official inquired from the person sitting upon seat No.37 of bus then he disclosed his name as Kartar Singh son of Tula Ram resident of Nirmand. PW6 Bahadur Singh has specifically stated that thereafter it was informed to accused Kartar Singh that he has legal right to be searched before the Magistrate or gazetted ::: Downloaded on - 15/04/2017 18:17:38 :::HCHP 25 officer and memo Ext PW5/A was prepared which bears his .
signature in red circle 'X'. PW6 has specifically stated in positive manner that thereafter accused had given his option to be searched by police officials present at the spot. PW6 has stated in positive manner that rexen bag which was kept upon the leg of accused was searched by police officials and black coloured substance in the shape of wicks and marbles were recovered. PW6 has specifically stated that thereafter charas was weighed with the help of scale which was found 2.100 Kg.
PW6 has specifically stated in positive manner that thereafter parcel was sealed with ten seals of seal impression 'N' and NCB form was filled up. It is well settled law that principle of falsus in uno falsus in omnibus is not applicable in criminal trials. See AIR 1980 SC 957 titled Bhe Ram Vs. State of Haryana. Also See AIR 1971 SC 2505 titled Rai Singh Vs. State of Haryana. It is well settled law that testimony of hostile witness should not be discarded altogether. It is well settled law that testimony of hostile witness could be considered by criminal Court which is trust worthy, reliable and inspire confidence of Court. See AIR 2004 SC 1720 titled Lella Srinivasa Rao Vs. State of Andhra Pradesh. Also see AIR 2006 ::: Downloaded on - 15/04/2017 18:17:38 :::HCHP 26 SC 951 titled Radha Mohan Singh Vs. State of UP. Also see .
AIR 2003 SC 4230 titled State of Rajasthan Vs. Bhawani. Also see AIR 1988 SC 696 titled appabhai and another Vs. State of Gujarat. Also See: 2011 (6) SCC 312 titled Yomeshbhai Pranshankar Bhatt Vs. State of Gujarat. Also see 2012 (5) SCC 777 titled Ramesh Harijan Vs. State of Uttar Pradesh, also see AIR 1977 SC 170 titled Rabindra Kumar Dey Vs. State of Orissa, also see AIR 1991 SC 1853 titled Khujji Vs. State of Madhya Pradesh. We have carefully perused the testimony of DW1 Sunil Kumar. DW1 has specifically stated in positive manner that one jeep came from Theog side and jeep overtook the bus and asked the driver to stop the bus near Hasan valley. DW1 has specifically stated that thereafter police officials told that they want to conduct search of the bus some police officials boarded the bus from front door and 3/4 police officials boarded bus from rear door and they locked the bus. Search of bus having registration No. HP-22B-
2087 on dated 1.5.2011 at Hasan valley is also proved as per testimony of DW1 Sunil Kumar.
15. Another submission of learned Advocate appearing on behalf of appellant that no possession of 2.100 ::: Downloaded on - 15/04/2017 18:17:38 :::HCHP 27 Kg. charas was found from exclusive possession of accused .
and on this ground appeal filed by appellant be accepted is also rejected being devoid of any force for the reason hereinafter mentioned. PW7 Inspector Minakshi has specifically stated in positive manner when she appeared in witness box that 2.100 Kg. charas was found from the exclusive and conscious possession of the accused. Testimony of PW7 Inspector Minakshi is corroborated by PW5 HC Balbir Singh. PW5 Balbir Singh has specifically stated in positive manner when he appeared in witness box that 2.100 Kg.
charas was found from the possession of accused. Even PW6 Bahadur Singh driver of the bus has specifically stated when he was cross-examined by the prosecution that charas was recovered from the possession of person sitting on seat No.37 of bus in his presence. There is no evidence on record in order to prove that police officials have prior hostile animus against accused at any point of time. It is well settled law that conviction could be sustained upon the testimony of police official if the same is trustworthy, reliable and inspire confidence of Court. See 1996 (1) SCC 427 titled Sama Alana Abdulla Vs. State of Gujarat. Also see AIR 1996 (3) SCC 338 ::: Downloaded on - 15/04/2017 18:17:38 :::HCHP 28 titled Tahir Vs. State of Delhi. It was held in case reported in .
AIR 1973 SC 2783 titled Nathu Singh Vs. State of MP that the mere fact that witnesses examined in support of prosecution case were police officials is not strong enough to discard their evidence. It was held that police officials should not be treated as interested witnesses. See AIR 1985 SC 1092 titled State of Gujarat Vs. Raghunath Vamanrao Baxi . Also see 2012 (4) SCC 722 titled Govindaraju Vs. State. Also see 2007 15 SCC 760 Tika Ram Vs. State of MP. Also see 2007 (7) SCC 625 titled Girja Prasad Vs. State of MP.
16. Another submission of learned Advocate appearing on behalf of appellant that it is not proved on record beyond reasonable doubt that charas was found from the conscious possession of appellant and on this ground appeal filed by appellant be accepted is also rejected being devoid of any force for the reason hereinafter mentioned.
Under Section 35 of the Narcotic Drugs & Psychotropic Substance Act 1985 there is presumption of culpable mental state. Accused did not adduce any positive, cogent and reliable evidence on record in order to prove the fact that he had no culpable mental state. Even there is presumption ::: Downloaded on - 15/04/2017 18:17:38 :::HCHP 29 against accused under Section 54 of the Narcotic Drugs & .
Psychotropic Substance Act 1985 relating to possession of contraband article and accused did not rebut presumption mentioned under Section 54 of the NDPS Act 1985 satisfactorily. See 2010 (9) SCC 608 titled Dharampal Singh Vs. State of Punjab.
17. Another submission of learned Advocate appearing on behalf of appellant that re-sealing process in NCB form was not conducted by Station House Officer and on this ground appeal be accepted is also rejected being devoid of any force for the reason hereinafter mentioned. We have carefully perused NCB form placed on record. There is recital in column No.9 of NCB form that NCB form was resealed with seal impression 'P' by MHC/SHO. PW5 Balbir Singh has specifically stated when he appeared in witness box that MHC Parkash Chand was also officiating SHO at the relevant time in police station. Testimony of PW5 HC Balbir Singh that PW1 Parkash Chand was officiating SHO at the relevant time remained un-rebutted on record. Accused did not adduce any positive, cogent and reliable evidence on record in order to ::: Downloaded on - 15/04/2017 18:17:38 :::HCHP 30 prove that PW1 Parkash Chand was not officiating SHO at the .
relevant time.
18. Another submission of learned Advocate appearing on behalf of appellant that there is material contradictions in the prosecution case and on this ground appeal filed by appellant be accepted is also rejected being devoid of any force for the reason hereinafter mentioned.
Appellant did not point out any material contradictions in the testimony of prosecution case which goes to the root of the case. It is well settled law that minor contradictions are bound to come in criminal case when testimony of prosecution witness is recorded after a gap of sufficient time. In the present case contraband was recovered from the exclusive and conscious possession of accused on dated 1.5.2011 and testimonies of prosecution witnesses were recorded on dated 17.1.2012, 18.1.2012, 21.3.2012, 21.4.2012, 21.5.2012 and 15.6.2012. It is held that minor contradictions are bound to come in criminal case when testimony of prosecution witness is recorded after gap of sufficient time. It was held that minor discrepancy should be ignored in criminal case. See 2004 (12) SCC 492 titled Shashidhar Purandhar Hedge and another Vs. ::: Downloaded on - 15/04/2017 18:17:38 :::HCHP 31 State of Karnataka. Also see 1999 (9) SCC 525 titled Leela .
Ram Vs. State of Haryana. Also see 2010 (9) SCC 765 titled C.Muniappan and others Vs. State of Tamil Nadu. See AIR 1972 SC 2020 titled Sohrab and another Vs. The State of Madhya Pradesh, see AIR 1985 SC 48 titled State of UP Vs. M.K.Anthony, see AIR 1983 SC 753 titled Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat, see AIR 2007 SC 2257 titled State of Rajasthan Vs. Om Parkash, see 2009 (11) SCC 588 titled Prithu Chand and another Vs. State of HP, see 2009 (9) SCC 626 titled State of UP Vs. Santosh Kumar and others, see AIR 2009 SC 152 titled State Vs. Saravanan and another,see AIR 1988 SC 696 titled Appabhai and another Vs. State of Gujarat, see AIR 1999 SC 3544 titled Rammi Vs. State of M.P, see 2000(1) SCC 247 titled State of H.P. Vs. Lekh Raj and another, see 2004 (10) SCC 94 titled Laxman Vs. Poonam Singh and others also See 2004 (7) SCC 408 titled Dashrath Singh Vs. State of UP. See 2012 (10) SCC 433 titled Kuriya and another Vs. State of Rajasthan. Even as per chemical analysis report placed on record Ext PW7/G it is proved on record that after various scientific tests such as physical identification, chemical and chromatograph analyses ::: Downloaded on - 15/04/2017 18:17:38 :::HCHP 32 carried out in the laboratory contraband was found to be .
sample of charas.
19. In view of above stated facts it is held that learned trial Court has properly appreciated oral as well documentary evidence placed on record and it is held that no miscarriage of justice has been caused to the appellant. Appeal filed by appellant is dismissed and judgment and sentence passed by learned trial Court are affirmed. Appeal is disposed of.
Pending application if any also disposed of.
(Sanjay Karol), Judge.
(P.S.Rana), Judge.
May 30,2015(R) ::: Downloaded on - 15/04/2017 18:17:38 :::HCHP