Himachal Pradesh High Court
______________________________________________________ vs Devi Singh on 26 July, 2016
Bench: Rajiv Sharma, Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL .
PRADESH, SHIMLA.
Cr.A No. : 430 of 2011 Reserved on: 21.7.2016 Decided on: 26.7.2016 ______________________________________________________ State of H.P. ...Appellant of Versus Devi Singh. ...Respondents.
_________________________________________________________ rt Coram:
Hon'ble Mr. Justice Rajiv Sharma, Judge.
Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting? 1 Yes For the appellant: Mr. Parmod Thakur, Addl. A.G. For the Respondents: Mr. N.K. Thakur, Sr. Advocate with Ms. Jamuna Pathik.
_________________________________________________________ Justice Rajiv Sharma, Judge.
State has come in appeal against the judgment dated 21.5.2011 rendered by the Special Judge, FTC, Chamba in Sessions Trial No. 28/2010 whereby the respondent-
accused (hereinafter referred to as the "accused"), who was 1 Whether reporters of the local papers may be allowed to see the judgment? Yes ::: Downloaded on - 15/04/2017 20:52:52 :::HCHP 2 charged with and tried for offence punishable under .
section 20 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the 'Act' for brevity sake), has been acquitted.
2. Case of the prosecution, in a nutshell, is that of on 29.10.2010, HC Kartar Singh alongwith HC Varinder, Constable Mohmad Aslam and other police officials rt proceeded in a vehicle bearing registration No. HP-44-0748 from SI Unit, Chamba towards Kotti at 11.00 A.M. The police party reached at 1.45 P.M. at a distance of one KM from Pukhari towards Koti where a Nakka was laid. At about 2.05 P.M., Naryal Bus Service bearing registration No.HP-48-2910 appeared from Koti side. It was stopped.
HC Varinder Singh entered the bus from the front door whereas HC Kartar Singh alongwith other police officials entered the bus from the rear door. When HC Kartar Singh reached near seat No.34, accused was found occupying seat No.34. He was carrying a black coloured bag on his lap. Accused tried to shift the bag. Driver and conductor of the bus were summoned to seat No.34. In the presence ::: Downloaded on - 15/04/2017 20:52:52 :::HCHP 3 of driver and conductor, accused was apprised that he was .
suspected of carrying narcotics and was required to be searched. He was also apprised of his legal right to be searched before a Magistrate or Gazetted Officer, however, accused consented to be searched by the police on the spot of vide consent memo Ex.PW-1/A. Thereafter, accused was brought down from the bus alongwith bag. Police officials, rt driver and conductor of the bus gave their search to the accused. Black coloured bag was opened which was containing yellow coloured polythene packet. It contained black coloured hard substance. It was found to be Charas.
It weighed 4 kgs. The Charas was put in the same polythene packet, which was parceled in a piece of cloth and sealed with five seals of 'A'. NCB form was completed.
Rukka Ex.PW-12/A was prepared. It was sent to Police Station through constable Mohd. Aslam. FIR Ex.PW-4/A was registered. Case property was handed over to SI/SHO Joginder Singh for resealing. SI/SHO Joginder Singh resealed the case property in the presence of HHC Madan Singh with three seal impressions 'O'. The case property ::: Downloaded on - 15/04/2017 20:52:52 :::HCHP 4 was handed over to MHC Pawan Kumar at about 7.00 P.M. .
He entered the same in Malkhana Register at Sr. No.600.
The contraband was sent to FSL, Junga through Constable Kunwar Singh vide RC No. 199/10. Report of FSL, Junga is Ex.PX. The police investigated the case and the challan of was put up in the Court after completing all the codal formalities.
3. rt Prosecution examined as many as 12 witnesses in all to prove its case against the accused. Statement of accused under Section 313 Cr.P.C. was recorded. He denied the case of prosecution. He was acquitted by the trial court vide judgment dated 21.5.2011. Hence, the present appeal.
4. Mr. Parmod Thakur, learned Addl. A.G. has vehemently argued that the prosecution has proved its case against the accused.
5. Mr. N.K. Thakur, learned Senior Advocate has supported the judgment dated 21.5.2011.
::: Downloaded on - 15/04/2017 20:52:52 :::HCHP 56. We have heard the learned counsel for the .
parties and have gone through the judgment and record meticulously.
7. PW-1 HC Varinder Singh has testified that on 29.10.2010, he had accompanied HC Kartar Singh, of Constable Yaqub Mohd. and others for patrolling. Nakka was laid at a distance of 1 KM from Pukhari on Chamba Tissa road.
rt At about 2.05 P.M., bus No. HP-48-2910 Naryal Bus Service came from Koti side. The bus was stopped. He entered the bus from the front door whereas HC Kartar and other officials entered the bus from the rear door. During search of the luggage of the passengers, when Kartar Singh reached near seat No.34, a passenger sitting on seat No.34 was found carrying a black coloured bag. He got frightened and tried to shift the bag. Accused was suspected of carrying some narcotics. Accused was apprised of his legal right to be searched before a Magistrate or Gazetted Officer. Accused consented to be searched by the police vide consent memo Ex.PW-1/A. The bag was searched. It contained charas. It weighed 4 KGs.
::: Downloaded on - 15/04/2017 20:52:52 :::HCHP 6Thereafter, sealing proceedings were completed on the .
spot. I.O. scribed Rukka. In his cross-examination, he has deposed that they had stopped approximately for one hour at Ballu, 30 minutes at Kiari and 30 minutes at Pukhari. They reached at the place of Nakka at 2.00 P.M. of He checked seats of about 10-15 passengers. Rest of the seats were checked by HC Kartar Singh and others. Seats rt abutting to seat No.34 were vacant. He was not aware that Senior Secondary School was situated at Koti or offices of Electricity, I&PH and PWD were situated there. According to him, Koti was at a distance of 5-6 KMs from the place of Nakka.
8. PW-2 HHC Madan Singh has deposed that on 29.10.2010 at about 6.30 P.M., HC Kartar Singh produced one parcel of cloth sealed with five seals of seal 'A' alongwith sample seal and NCB forms in triplicate before ASI Joginder Singh. The seals were intact. Relevant columns of NCB form were completed by the SHO and seal 'O' was affixed on NCB form.
::: Downloaded on - 15/04/2017 20:52:52 :::HCHP 79. PW-3 Constable Mohd Aslam also deposed the .
manner in which accused was apprehended while sitting on seat No.34. Accused was carrying bag. It contained Charas. It weighed 4 KGs. All the codal formalities were completed on the spot. I.O. prepared rukka mark 'X' and of handed the same over to him. He took the rukka to Police Station. In his cross-examination, he has deposed that rt seats behind and ahead of seat No.34 were vacant.
However, the passengers were sitting on the left and right side of the accused, but he was not aware about their whereabouts.
10. PW-4 ASI Joginder Singh has deposed that on 29.10.2010 at about 4.15 P.M. Rukka was brought to Police Station by Constable Mohd. Aslam. He entered FIR Ex.PW-4/A. HC Kartar Singh came to Police Station and handed over to him one parcel duly sealed with five seals of 'A' allegedly containing 4 KGs of Charas alongwith NCB form in triplicate and sample seal. He resealed the parcel with seal impression 'O'. He handed over the case property to MHC Pawan Kumar at 7.00 P.M. ::: Downloaded on - 15/04/2017 20:52:52 :::HCHP 8
11. PW-5 HC Pawan Kumar has deposed that .
ASI/SHO Joginder Singh handed over to him one parcel duly sealed with five seals of 'A' and three seals of 'O' alongwith specimen seal A and O, NCB form and recovery memo. He entered the same in Malkhana register at Sr. of No.600. He sent the same to FSL, Junga through Constable Kunwar Singh vide RC No. 199/10.
12. rt PW-6 Constable Kunwar Singh carried the case property to FSL, Junga on 1.11.2010.
13. PW-10 Jagdish has deposed that he was working as a Conductor for the last three years. Bus No. HP-48-2910 was stopped by the police near Pukhari.
Nakka was already laid. Nothing was recovered by the police in his presence. He was made to alight from the bus. He was declared hostile and was cross-examined by the Public Prosecutor. He denied the suggestion that accused was brought down and search was required to be taken. He has admitted his signatures on Ex.PW-1/A, Ex.PW-1/B, Ex.PW-1/D, Ex.PW-1/E and Ex.PW-1/F. He ::: Downloaded on - 15/04/2017 20:52:52 :::HCHP 9 also admitted his signatures on parcel Ex.P-1. He also .
admitted that his address was correct on all the memos.
14. PW-11 Lal Chand was the driver of the bus.
The bus was stopped. There were 40-50 passengers. They were de-boarded from the bus. Thereafter, his signatures of and conductor's signatures were obtained by the police.
No other person signed any document in his presence. He rt was declared hostile and was cross-examined by the learned Public Prosecutor. He also denied that accused was made to de-board from the bus and he was suspected of carrying some narcotics. He has also denied that charas was recovered from the bag. He has admitted his signatures on Ex.PW-1/A, Ex.PW-1/B and Ex.PW-1/C. He has also admitted that his signatures were also obtained by the police at 3-4 places on a cloth. He has admitted his signatures on Ex.P-1. He has also admitted that generally he used to sign the documents after reading the same. He has also admitted that ticket Ex.PW-10/A pertained to their bus.
::: Downloaded on - 15/04/2017 20:52:52 :::HCHP 1015. PW-12 HC Kartar Singh has also deposed the .
manner in which the accused was nabbed while sitting on seat No. 34. The bag was searched. It contained Charas.
All the codal formalities were completed on the spot. The accused was also apprised of his legal right to be searched of by a Magistrate or Gazetted Offer vide memo Ex.PW-1/A. Rukka Ex.PW-12/A was prepared and sent to Police rt Station for registration of case through Constable Mohd.
Aslam. Statements of witnesses were recorded.
16. What emerges from the analysis of statements of prosecution witnesses, as discussed hereinabove, is that the accused was found sitting on seat No.34. He was carrying a bag in his lap. He was de-boarded from the bus.
He was apprised of his legal right to be searched before a Magistrate or Gazetted Officer. He consented to be searched by the police officer present on the spot. The bag was searched. It contained 4 KGs of charas. All the codal formalities were completed on the spot. The Charas was produced before the ASI/SHO Joginder Singh. He resealed the case property. It was deposited in the Malkhana by ::: Downloaded on - 15/04/2017 20:52:52 :::HCHP 11 PW-5 Pawan Kumar. Thereafter, the case property was .
sent to FSL, Junga through PW-6 Constable Kunwar Singh. The case property remained intact from the date of its seizure till its production in the Court.
17. Statement of PW-1 Varinder Singh is duly of corroborated by PW-3 Constable Mohd. Aslam and PW-12 HC Kartar Singh. PW-1 Varinder Singh has deposed that rt seat abutting seat No. 34 was vacant. Similarly, PW-3 Constable Mohd. Aslam has deposed that seats ahead and behind of seat No.34 were vacant. The trial court has acquitted the accused on the ground that no passengers were examined. It was not necessary to examine the co-
passengers, more particularly, when seats ahead and at the back of seat No.34, were vacant.
18. In the instant case, compliance of section 50 of the Act was not required for the simple reason that the Charas was recovered from the bag and not from the person of the accused. However, despite that his personal search was carried and the same was in conformity of the provisions of section 50 of the Act. The accused was ::: Downloaded on - 15/04/2017 20:52:52 :::HCHP 12 specifically apprised of his legal right to be searched before .
a Magistrate or Gazetted Officer.
19. It has come on record that number of students were travelling in a bus. They could not be joined as witnesses since they were going to take some written of examination. They were not required to be provided transportation, as observed by the trial court. Non rt production of the seal in the court was not fatal to the prosecution case since the accused has failed to satisfy this Court what prejudice has been caused to him by non-
production of seal. Moreover, it has come in evidence, as noticed hereinabove, that the case property remained intact from its seizure till its production in the Court.
20. Mr. Naresh Thakur, learned Senior Advocate has vehemently argued that the prosecution case has not been supported by the independent witnesses, i.e. PW-10 Jagdish, Conductor and PW-11 Lal Chand, Driver of the bus. However, fact of the matter is that both of them have admitted their signatures on all the memos, i.e. Ex.PW-
1/A, Ex.PW-1/B, Ex.PW-1/C, Ex.PW-1/D and Ex.P-1, ::: Downloaded on - 15/04/2017 20:52:52 :::HCHP 13 respectively. Mr. Naresh Thakur has also argued that the .
signatures were obtained on the blank paper. However, it has come in the statement of PW-11 Lal Chand that he was 6th pass and he could read and write. He generally used to sign the documents after reading the same. It was not of their case that they were forced or coerced to sign the documents. In case their signatures were obtained on the rt blank papers, they could bring the same to the notice of the higher authorities.
21. Statements of the official witnesses if inspire confidence and are trustworthy, the same can be relied upon. Their statements cannot be discarded merely on the ground that they happened to be official witnesses. The prosecution has duly proved that the Charas was recovered from the conscious possession of the accused while he was travelling in a bus bearing registration No. HP-48-2910 occupying seat No.34.
21. Their Lordships of the Hon'ble Supreme Court in Ram Swaroop versus State (Government of NCT of Delhi) (2013) 14 SCC 235 has held that there is no ::: Downloaded on - 15/04/2017 20:52:52 :::HCHP 14 absolute rule that police officers cannot be cited as .
witnesses and their depositions should be treated with suspicion since generally public at large are reluctant to come forward to depose before court and, therefore, prosecution case cannot be doubted for non-examining of independent witnesses. Their Lordships have held as under:
rt [7] To appreciate the first limb of submission, we have carefully scrutinized the evidence brought on record and perused the judgment of the High Court and that of the trial Court. It is noticeable that the evidence of PW-7, namely, Ritesh Kumar, has been supported by Balwant Singh, PW-5, as well as other witnesses. It has come in the evidence of Ritesh Kumar that he had asked the passerby to be witnesses but none of them agreed and left without disclosing their names and addresses. On a careful perusal of their version we do not notice anything by which their evidence can be treated to be untrustworthy. On the contrary it is absolutely unimpeachable. We may note here with profit there is no absolute rule that police officers cannot be cited as witnesses and their depositions should be treated with suspect. In this context we may refer with profit to the dictum in State of U.P. v. Anil Singh, 1988 Supp1 SCC 686 wherein this Court took note of the fact that generally the public at large are reluctant to come forward to depose before the court and, therefore, the prosecution case cannot be doubted for non- examining the independent witnesses.
[10] Keeping in view the aforesaid authorities, it can safely be stated that in the case at hand there is no reason to hold that non- examination of the independent witnesses affect ::: Downloaded on - 15/04/2017 20:52:52 :::HCHP 15 the prosecution case and, hence, we unhesitatingly repel the .
submission advanced by the learned counsel for the appellant."
22. Consequently, in view of analysis and discussion made hereinabove, the prosecution has proved its case against the accused for the offence under section of 20 of the Act.
23. Accordingly, the appeal is allowed. Judgment dated 21.5.2011 rendered by the Special Judge, Fast Track rt Court, Chamba in Sessions Trial No. 28/2010 is set aside.
The accused is convicted for offence punishable under section 20 of the Act. Accused be produced to be heard on the quantum of sentence on 2.8.2016. The bail bonds are cancelled.
24. The Registry is directed to prepare the production warrants.
25. Recently, in a Seminar organized in the IGMC Shimla, issue of drug abuse amongst the youth of Himachal Pradesh was highlighted. 40% youths are involved in drug abuse. Even school-going boys and girls are indulging in the same.
::: Downloaded on - 15/04/2017 20:52:52 :::HCHP 1626. Before parting with the judgment, this Court .
thinks it fit and proper to issue following mandatory directions to curb the illegal transportation of Narcotic Drugs & Psychotropic Substances:-
(i) Director-General of Police, Himachal Pradesh of shall issue directions to the Investigating Officers to trace the sources of Narcotic Drugs & Psychotropic Substances and their final destination within and outside the State.
rt Such persons, from whom these are purchased in the State of Himachal Pradesh by the couriers/carriers and the persons to whom these are to be delivered finally, must be booked under the provisions of enabling laws. Court has also come across non-implementation of the production warrants after the accused are convicted to undergo sentences imposed upon them. In order to facilitate timely and effective implementation of production warrants, the Superintendents of Police shall depute persons not below the rank of Sub Inspector and a government vehicle shall also be provided to him. The police force going outside the State of Himachal Pradesh for effecting production warrants should be armed. Principal Secretary (Home) to the Government of Himachal Pradesh is also directed to ::: Downloaded on - 15/04/2017 20:52:52 :::HCHP 17 constitute a special task force in the worst affected .
Districts of Himachal Pradesh consisting of IPS officer, Dy.SP, Inspectors/Sub Inspectors and Head Constables in order to nab the person(s) indulging in illegal transportation of Narcotic Drugs & Psychotropic Substances. All the investigations in those cases where of quantity of contraband is more than the 'commercial quantity' are ordered to be supervised by the rt Superintendent of Police concerned personally. Disciplinary proceedings be initiated against police personnel, who turn hostile to support the accused booked under Narcotic Drugs & Psychotropic Substances Act, 1985. Principal Secretary (Home) while constituting such special task force as noticed herein above, shall personally go through the ACRs of the officers concerned to ensure that best officers are picked up for this sensitive job. The special task force shall be constituted within a period of three weeks from today.
(ii) All the Heads of the educational institutions throughout the State of Himachal Pradesh are directed to ensure that their institutions are drug-fee.
Superintendents of Police throughout the State of ::: Downloaded on - 15/04/2017 20:52:52 :::HCHP 18 Himachal Pradesh are directed to place officers in plain .
cloths in the vicinity of the educational institutions to nab the drug peddlers. CMO's throughout the State of Himachal Pradesh are directed to ensure that no chemist/druggist supplies drugs containing codeine, morpheme or such other substances including cough of syrups without due prescription by a medical practitioner to the boys and girls below 18 years of age.
(iii) rt State Government is also directed to make suitable amendments in the Himachal Pradesh Municipal Corporation Act, 1994, The Himachal Pradesh Municipal Act, 1994 and The Himachal Pradesh Panchayati Raj Act, 1994, within six months debarring the "relatives" of convicts, who are convicted under the Narcotic Drugs and Psychotropic Substances Act, 1985, from contesting elections to the local bodies under Himachal Pradesh Municipal Corporation Act, 1994, The Himachal Pradesh Municipal Act, 1994 and The Himachal Pradesh Panchayati Raj Act, 1994. 'Relative' shall mean:-
(1) spouse of the person;
(2) brother or sister of the person;
(3) brother or sister of the spouse of the person;
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19
(4) any lineal ascendant or descendant of the
.
person;
(5) any lineal ascendant or descendant of the
spouse of the person;
(6) spouse of a person referred to in sub-clause (2);
sub-clause (3), sub-clause (4), or sub-clause (5); (7) any lineal descendant of a person referred to in of sub-clause(2) or sub-clause(3).
rt (Justice Rajiv Sharma),
Judge.
(Justice Sureshwar Thakur),
Judge.
26.7.2016
*awasthi*
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