Himachal Pradesh High Court
Harish Kumar vs The State Of Himachal Pradesh on 6 March, 2018
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 304 of 2014 Reserved on: 10.01.2018 Decided on: 06.03.2018 .
__________________________________________________________ Harish Kumar .....Appellant.
Versus The State of Himachal Pradesh ......Respondent.
__________________________________________________________ Coram The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
approved for reporting? Yes.
1 Whether __________________________________________________________ For the appellant: Mr. Suresh Kumar Thakur, Advocate.
For respondent: Mr. Virender K. Verma, Addl. AG, with Mr. Pushpinder Jaswal, Dy. AG and Mr. Rajat Chauhan, Law Officer.
Chander Bhusan Barowalia, Judge.
The present appeal is maintained by the appellant/accused/convict (hereinafter referred to as "the accused"), laying challenge to judgment dated 02.08.2014, passed by learned Special Judge (II), (Additional Sessions Judge-II), Shimla, District Shimla, H.P., in Sessions Trial No. 16-S/7 of 2014, whereby the accused was convicted for the commission of the offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "ND&PS Act").
1Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 07/03/2018 23:03:29 :::HCHP 22. The background facts, as projected by the prosecution, can tersely be summarized as under:
On 25.10.2013, at about 07:30 p.m., police party was on .
routine patrol and traffic checking duty at Totu Chowk. The accused was coming from Power House Road towards Totu Chowk and on seeing police he started running. The accused was nabbed and he disclosed his name as Harish. His bag was checked by the police in presence of witnesses and during search inside the bag another black bag was found and the same contained a steel container. The said steel container was opened and some substance, which was black in colour and was in stick shapes, was recovered. The recovered substance on smelling and on the basis of experience was found to be charas. The recovered substance was weighed in the shop of one Shri Santosh Kumar on the electronic scale and was found to be 290 grams. The contraband alongwith container was also weighed and found to be 520 grams. Thereafter the police completed the sealing process and the contraband alongwith bags and container was taken into possession vide seizure memo. NCB forms were also filled in. The signatures of the accused and witnesses were obtained on the seizure memo and sample seal. Seal impression, after its use, was handed over to Shri Kamal Verma.
Police party sent rukka to Police Station Boileauganj, whereupon FIR ::: Downloaded on - 07/03/2018 23:03:29 :::HCHP 3 was registered. All the incriminating articles were taken into possession vide seizure memo, seal impression was taken into separate piece of cloth and NCB form, in triplicate, was prepared.
.
The case property was resealed with seal impression 'M' and facsimile seal was taken separately on a piece of cloth. The personal articles of the accused were also taken into possession vide separate seizure memo and sealed with seal impression 'J'. The case property was initially deposited in the malkhana and subsequently sent to chemical analysis. Police prepared the site plan of the place of occurrence. Special Report was sent to ASP Shimla, through HHC Gulat Ram, which was entered in diary register of Reader to ASP, Shimla. CIPA (common integrated police application certificate) was also prepared. Statements of the witnesses were recorded. Report from the Forensic Science Laboratory revealed that the sample contained presence of cannabinoids, including the presence of tetrahydrocannabinol in the presence of tetrahydracannabinol. The microscopic examination revealed the presence of characteristic cytolitihic haris in the sample. Charas is a resinous mass, the quantity of purified resin, as found in the sample as charas is 31.10% w/w. Thus the sample is extract of cannabis and sample of charas. After completion of all the formalities, final report was prepared and the challan was presented in the Court.::: Downloaded on - 07/03/2018 23:03:29 :::HCHP 4
3. The prosecution, in order to prove its case, examined as many as eleven witnesses. Statement of the accused was recorded under Section 313 Cr.P.C., wherein he pleaded not guilty. The .
accused did not lead any evidence in his defence.
4. The learned Trial Court, vide impugned judgment dated 02.08.2014, convicted the accused to undergo rigorous imprisonment for four years and to pay fine of `20,000/- and in default of payment of fine he was further ordered to undergo simple imprisonment for one year under Section 20 of the ND&PS Act, hence the accused (convict) preferred the present appeal.
5. The learned Counsel for the appellant (accused) has argued that the learned Trial Court has not appreciated the evidence in its right perspective and the judgment passed by the learned Trial Court is based on surmises and conjectures. He has further argued that the learned Trial Court has ignored the fact that the police did not comply with the mandatory provisions ingrained in the ND&PS Act. The statements of the official as well as independent witnesses are not confidence inspiring and the same have not been correctly appreciated. Conversely, learned Additional Advocate General has argued that the learned Trial Court has appreciated the evidence correctly and the accused has been rightly convicted. He has argued that the judgment rendered by the learned Trial Court is the result of ::: Downloaded on - 07/03/2018 23:03:29 :::HCHP 5 proper appreciation of evidence and law. Lastly, he has prayed that the appeal is without merits and the same may be dismissed.
6. In rebuttal, the learned counsel for the appellant has .
argued that the appellant be acquitted and the judgment of conviction rendered by the learned Trial Court be set aside.
7. In order to appreciate the rival contentions of the parties I have gone through the record carefully.
8. PW-1, HC Manoj, deposed that on 25.10.2013, at about 07:30 p.m. he alongwith other police personnel was patrolling at Totu Chowk. They saw the accused coming towards Totu Chowk and he was carrying a bag on his back. As per this witness, after seeing the police party, the accused started running and was nabbed. Police inquired about his whereabouts and name. At that time Shri Anil Kumar and Shri Kamal Verma (PW-2) were also present there. Police searched the bag of the accused in front of the shop of one Shri Santosh Kumar (PW-9) in the light kept outside the shop. The bag contained one more bag, which was inscribed with word 'Royal' and the same contained a steel box whereon sticker having words 'Super cup tea' was found pasted. This steel box contained a black stick shaped material, which on smelling was found to be charas. The recovered contraband was weighed on the electronic scale kept inside the shop of Shri Santosh Kumar (PW-9) ::: Downloaded on - 07/03/2018 23:03:29 :::HCHP 6 and it was found to be 290 grams. The charas was again kept inside the steel box and the box was weighed, which was found to be 520 grams. All the articles were sealed with seal impression 'S' and .
facsimile seal was taken on a separate piece of cloth and on NCB form. The case property was taken into possession vide seizure memo, Ex. PW-1/A, which was signed by him, Shri Kamal Verma (PW-2) and Shri Anil Kumar. As per this witness, personal search of the accused was conducted and a mobile, electronic/digital scale, one belt, two lockets with black strings and currency notes of Rs.
15330/-, denomination whereof was Rs. 1000/-, Rs. 500/-, Rs.
100/- Rs. 20/- and Rs. 10/-, were found. All the personal articles were also taken into possession vide recovery memo, Ex. PW-1/C, and the same was signed by him and Shri Kamal Verma (PW-2) and Shri Anil. The seal 'S' was handed over to Anil and seal 'J' was kept by the I.O. This witness, in his cross-examination, has deposed that an entry was carried out in the rapat roznamcha qua the time of their arrival or departure. He has deposed that they had arrived on the spot at 07:30 p.m. and the accused was spotted by SI Harish. As per this witness, there had been visibility of approximately 100-150 meters from the spot to all the sides. The owner of the shop was present in the shop and police remained there till 11:00 p.m. The accused was apprehended by chance and the search was conducted ::: Downloaded on - 07/03/2018 23:03:29 :::HCHP 7 by SI Harish Kumar (PW-11). He has further deposed that they prepared the parcels on the spot by stitching with needle and thread.
Parcels, P-1 and P-7 were available in the I.O. kit, which were .
stitched with swing machine. Some polythene packets were taken from the shop.
9. PW-2, Shri Kamal Verma (independent witness), has deposed that he is taxi owner and used to park his taxi at Totu Taxi Union. On 23.10.2013, around 07:30 p.m., he alongwith Anil was standing at Totu Chowk. As per this witness, police had nabbed the accused and he was carrying a bag on his back. The accused disclosed his name as Harish, resident of Chamba. The accused was taken to City Café and he, Anil Kumar accompanied them. The bag of the accused was checked, which contained one more bag and that bag had a steel box. The steel box was opened and charas, which was black in colour, was found. The charas was sealed and personal search of the accused was conducted. During the personal search one mobile, currency notes in between Rs. 10,000/- to Rs. 15,000/-
and other articles were found. All the articles were sealed and taken into possession, vide separate seizure memos, Ex. PW-1/A and Ex.
PW-1/C. He signed the memos alongwith seal impression, Ex. PW-
1/B and Ex. PW-1/D. He has deposed that he is 10+2 and after going through the contents of the memos he signed the same. This ::: Downloaded on - 07/03/2018 23:03:29 :::HCHP 8 witness, in his cross-examination, has deposed that no one called him to the spot and the accused was caught in front of them, as they were standing nearby. As per this witness, he also stood as witness .
in another case of NDPS at Ghoond. He has good relations with the police. He has deposed that on the day of occurrence he went to Tara Devi and returned around 8-8:15 pm. He stayed on the spot for 5-10 minutes. The charas was weighed in the shop of Shri Santosh Kumar (PW-9) and the memos were prepared there to some extent and he signed the memos after returning from Tara Devi. He has deposed that sealing of the packets were not conducted before him.
10. PW-3, HHC Gulat Ram, deposed that he carried the rukka to Police Station, Boileauganj. He also also given a sealed parcel having seven seal impressions of 'S' alongwith NCB form, in triplicate, and sample seal. He handed over all the articles to Shri Gopal Verma, SHO, Boileauganj. After registration of the case, case file was handed over to him and he gave the same to S.I. Harish. SI Harish, Incharge, P.P. Jutogh handed over special report, in a sealed envelop, to S.O./ASP, Shimla, in his residence, as it was Sunday.
This witness, in his cross-examination, has deposed that rukka was prepared about 07:30 p.m, outside the Cafe, Totu Chowk, by SI Harish Kumar. PW-4, HC Varun Singh, deposed that on ::: Downloaded on - 07/03/2018 23:03:29 :::HCHP 9 28.10.2013, a sealed parcel, containing 290 grams charas in a steel box, which was sealed with seal impression 'S' seven times and resealed with seal impression 'N' five times, NCB form, in triplicate, .
alongwith sample seals 'S' and 'M' alongwith the docket was handed over to him, vide RC No. 123/13, for being deposited in FSL, Junga.
He after deposit of the same handed over the receipt to MHC Nikka Ram. As per this witness, all the articles remained intact under his custody. This witness, in his cross-examination, has deposed that he did not remember the time by when the case property was given to him.
11. PW-5, MHC Nika Ram, deposed that on 25.10.2013, SHO Gopal Verma (PW-10) deposited with him a sealed parcel, which stated to have contained a steel box having 290 grams charas, sealed with seven seals of impression 'S' and resealed with five seals of impression 'M' alongwith sample seal, NCB form (in triplicate) and a black bag. He entered the case property at Sr. No. 954/103/13, dated 25.03.2013, which is Ex. PW-5/A. He has further deposed that he had also entered the articles recovered from the personal search of the accused. On 28.10.2013, he handed over the sealed parcel, containing charas, alongwith NCB form (in triplicate) and seal impression 'S' and 'M', vide RC No. 123/13 to constable Varun Kumar and he handed over the receipt to him on 28.10.2013. As per ::: Downloaded on - 07/03/2018 23:03:29 :::HCHP 10 this witness, the case property remained intact under his custody.
This witness, in his cross-examination, has deposed that he did not remember the time when the case property was entrusted under his .
custody by SHO Gopal Verma (PW-10). PW-6, HC Bhupender, deposed that he was working as Reader to ASP, Shimla, and on 27.10.2013, at about 03:30 p.m., HHC Gulat Ram, brought a special report under Section 57 of the ND&PS Act to ASP, Shimla, at her residence, as it was holiday. ASP, Shimla, made an endorsement over the report and handed over to him the same for make apt entries. Copy of special report is Ex. PW-6/A and the sane was entered in diary register at Sr. No. 24489. True copy of special report is Ex. PW-6/B.
12. PW-7, Constable Praveen Dutt, deposed that on 25.10.2013 he carried out entry, Ex. PW-7/A, in rapat roznamcha register and entered rapat No. 9, roznamcha dated 25.10.2013, about the departure report. PW-8, SI Jasvir Singh, deposed that on 25.10.2013, he alongwith SI Harish, HC Manoj Kumar, HC Susheel and HHC Gaulat were on routine patrol duty at Totu Chowk. They, at about 07:30 p.m., spotted the accused carrying a gunny bag on his shoulder and the accused, on seeing the police, started running.
The accused was nabbed and he disclosed his name as Harish Kumar resident of Chamba. This witness has further deposed that ::: Downloaded on - 07/03/2018 23:03:29 :::HCHP 11 search of the accused was conducted under the tube light of the shop of Shri Santosh Kumar (PW-9) and the accused was having a black bag, which was kept inside the gunny bag, which was brown .
and purple in colour. As per this witness, a steel container was recovered from the bag and the same contained stick shaped black substance, which was found to be charas sticks. While carrying out the search of the accused Anil Kumar and Kamal Verma were also present on the spot. The charas was weighed, in presence of the witnesses, on the electronic scale of Shri Santosh Kumar (PW-9) and was found to be 290 grams. The charas was also weighed alongwith the container and was found to be 520 grams. He has further deposed that the charas alongwith the steel container was put in a packet and sealed with seal having impression 'S' and facsimile seal was taken on a separate piece of cloth. NCB form, in triplicate, was prepared and the bags were taken into possession. Seizure memo, Ex. PW-1/A, was prepared qua the recovery of all the articles and Shri Anil Kumar, Shri Kamal Verma and HC Manoj stood as marginal witnesses to the seizure memo and accused also put his signatures on the memo. The personal search of the accused was conducted and he was found in possession of Rs. 15,330/-, a belt, two lockets and a pocket electronic machine. All the articles recovered during the personal search of the accused were taken into ::: Downloaded on - 07/03/2018 23:03:29 :::HCHP 12 possession vide seizure memo Ex. PW-1/C and the same were sealed with seal impression 'J'. Memo, Ex. PW-1/C, was signed by Shri Anil Kumar, Shri Kamal Verma and HC Manoj and the accused also .
signed the same. Facsimile seal was also taken on a separate piece of cloth and the seal was handed over to Shri Anil Kumar. This witness, in his cross-examination, has deposed that the police did not check any vehicle or people during the patrol duty. He has further deposed that 20-25 people gathered on the spot. The rukka was prepared while sitting in the shop of Shri Santosh Kumar (PW-
9). As per this witness, firstly the bag of the accused was searched and subsequently his personal search was conducted. His statement was recorded on the spot.
13. Shri Santosh Kumar (PW-9) has deposed that he has City Sweet and Café at Totu Chowk and nothing has happened before him, as he was out of the shop at that time. This witness has resiled from his statement given to the police, so he was cross-examined by the learned Public Prosecutor. In his cross-examination he has deposed that he used to sit in the cafe and it is incorrect that the shop remains open till 11:00 p.m. As per this witness it is incorrect that on 25.10.2013 the police came to his shop and weighed the charas and steel container.
14. Shri Gopal Singh Verma, SHO, Police Station Boileauganj ::: Downloaded on - 07/03/2018 23:03:29 :::HCHP 13 (PW-10) has deposed that on 25.10.2013, HHC Gulat Ram came with rukka, whereupon FIR, Ex. PW-10/A, was registered and endorsement, qua the rukka, was written on the back side of the .
rukka, which is Ex. PW-10/B, which bears his signatures encircled in 'A'. Subsequently, HHC Gulat Ram produced before him a sealed parcel having seal impressions 'S', a steel container having 290 grams of charas, which was packed in a poly pack alongwith sample seal 'A' and NCB forms, in triplicate. He resealed the sealed parcel with seal having impression 'M' and the sample seal was taken on a separate piece of cloth. All the articles alongwith the sample seals 'S', 'M' and NCB form were deposited with MHC Nikka Ram. He prepared certificate, Ex. PW-10/C, which was signed by him and MHC. He also filled the columns pertaining to him, as SHO. He, after completion of the investigation, prepared the challan, which bears his signatures. This witness, in his cross-examination, has deposed that columns No. 9 and 11 of the NCB form are blank. He has further deposed that he did not associate any independent witness during the resealing process.
15. PW-11, SI Harish Kumar, is the Investigating Officer in the case in hand. He has deposed that on 25.10.2013 he alongwith AsI Jasvir Singh, HC Manoj, HC Susheel and HHC Gulat Ram was on routine patrol duty. At about 07:30 p.m., when they were at Totu ::: Downloaded on - 07/03/2018 23:03:29 :::HCHP 14 Chowk, a person carrying a bag came from Power House side towards Totu Chowk and on seeing the police he started running.
On suspicion that he might be having some stolen articles, he was .
apprehended. The accused disclosed his name as Harish from Chamba. As per this witness, Shri Anil Kumar and Shri Kamal Verma were associated as independent witnesses and bag, which was being carried by the accused, was searched in their presence.
The bag, which was brown and purple in colour had one more bag, which was black in colour. Inside the bag there was a steel container, whereon there was sticker having words 'super cup tea' written. The said container had stick shaped substance and on smelling it was found to be charas. He has further deposed that the recovered charas was weighed on electronic scale, which was kept inside the shop of Shri Santosh Kumar (PW-9) and was found to be 290 grams. The shop was adjoining to the main road. As per this witness, the charas was again put inside the steel container and weighed with it, which was found to be 520 grams. He has deposed that the steel container and charas were packed and sealed with seal having impression 'S' and the seal impression was taken on a separate piece of cloth. All the articles were taken into possession vide seizure memo, Ex. PW-1/A, in presence of Shri Anil, Shri Kamal and HC Manoj. As per this witness signatures of the accused and ::: Downloaded on - 07/03/2018 23:03:29 :::HCHP 15 witnesses were also obtained on the seizure memo and the sample seal was handed over to witness Kamal Verma. NCB form was filled in and rukka, Ex. PW-11/A, was sent to Police Station, Boileauganj, .
alongwith the case property. He has further deposed that personal search of the accused was also carried out and cash of Rs. 15,330/-
and pocket electronic scale alongwith personal articles were recovered. The articles recovered from the accused were taken into possession vide seizure memo, Ex. PW-1/C, in presence of Shri Anil, Shri Kamal and HC Manoj. The accused also signed the said seizure memo. He prepared the site plan, Ex. PW-11/B and recorded the statement of Shri Santosh Kumar, which is Ex. PW-11/C. The accused was arrested. As per this witness, report from Forensic Science Laboratory, Junga, Ex. PW-11/D, was received and after completion of investigation he handed over the case file to Inspector Gopal Verma for preparing the challan. This witness, in his cross-
examination, has deposed that on the day when the accused was apprehended the police party came to Totu bazaar and then went to Nalagarh bypass road and subsequently they came on the spot. He has further deposed that Nalagarh bypass road is on the opposite direction from the spot. He saw the accused from the distance of 15- 20 meters from Totu Chowk. He has further deposed that there was sufficient light available on the spot, as street light and lights from ::: Downloaded on - 07/03/2018 23:03:29 :::HCHP 16 the shops was lit. He did not know the witnesses prior to the occurrence. The witnesses met him after an interval of two minutes when the accused was apprehended. The shop of Shri Santosh .
Kumar (PW-9) is on the road side. He admitted that he did not show the street light on the site plan. As per this witness, witness Kamal left the spot during the investigation and his signatures were obtained before he left the spot.
16. After thoroughly discussing the entire prosecution evidence, it can be safely held that the whole edifice of the prosecution story rests upon the statements of HC Manoj (PW-1), Shri Kamal Verma (PW-2), SI Jasvir Singh (PW-8) and SI Harish Kumar (PW-11). Out of the above mentioned witnesses, Shri Kamal Verma (PW-2) is independent witness and all others are official witnesses. PW-2, Shri Kamal Verma, categorically deposed that on 23.10.2013, around 07:30 p.m., he was standing at Totu Chowk and the police nabbed a person, who was carrying a bag on his back and he disclosed his name as Harish (accused). He has further deposed that the accused was taken to City Cafe and he alongwith Anil accompanied the police team. This witness has fully supported the recovery part of the prosecution story. This witness, in his cross-
examination, has deposed that he stood as witness in another case of NDPS at Ghoond, but if an independent witness also sited as a ::: Downloaded on - 07/03/2018 23:03:29 :::HCHP 17 witness in any other case, it does not give any plausible reason for the defence to take benefit of this fact.
17. As it was a chance recovery, there was no occasion for .
the police to associated independent witnesses, however, in the case in hand the police associated Shri Anil Kumar and Shri Kamal Verma (PW-2), as independent witnesses. One of the independent prosecution witness (Shri Kamal Verma, PW-2) has fully supported the prosecution case and his statement is further fortified by official prosecution witnesses. Therefore, the statement of PW-2 has to be read in conjunction with the statements of HC Manoj (PW-1), SI Jasvir Singh (PW-8) and SI Harish Kumar (PW-11). This Court is delving whether the conviction passed by the learned Trial Court is as per the law and based on the confidence inspiring statements of official prosecution witnesses or not.
18. After carefully scrutinizing the statements of PW-1, HC Manoj, PW-2, Shri Kamal Verma, PW-8, SI Jasvir Singh and PW-11, SI Harish Kumar, it is found that their statements are confidence inspiring. The statements of all these witnesses are convincing and there was no occasion for the official prosecution witnesses to have involved the accused falsely. In fact, the statements of these witnesses have been corroborated by the recovery of contraband from the possession of the accused, which was effected as per the ::: Downloaded on - 07/03/2018 23:03:29 :::HCHP 18 law. The statements of these witnesses go unshattered and thus believable.
19. In the case in hand, the contraband was recovered from .
the steel container, Ex P-4, which was kept inside a black bag, Ex. P-
3, which was further kept inside another bag, Ex. P-2, carried by the accused on his shoulder and this fact stands fully proved by the prosecution. As far as the prior information is concerned, there was no prior information available with the police and there is no material available on record which points towards the fact that the any prior information, qua the accused having the charas, was available with the police, thus the provisions of Section 42 of the ND&PS Act are not attracted at all.
20. The learned counsel for the appellant has argued that there are contradictions in the statements of the official prosecution witnesses and the benefit of these contradictions go to the accused.
So far as the small contradictions qua distance, time etc. are concerned, such type of contradictions are natural, especially when the witnesses have deposed after lapse of long time, thus these minor contradictions are not fatal to the prosecution case and the accused cannot derive any benefit out of these minor contradictions.
The overall reading of the statements of the official prosecution witnesses inspires confidence.
::: Downloaded on - 07/03/2018 23:03:29 :::HCHP 1921. The statements of PW-1, HC Manoj, PW-2, Kamal Verma, PW-8, SI Jasvir Singh and PW-11, SI Harish Kumar, unflinchingly establish that a police party comprising of PW-11, SI Harish Kumar, .
PW-8, SI Jasvir Singh, PW-3, HHC Gulat Ram, and HC Susheel was present on the spot. The accused tried to escape, but he was nabbed and was found in exclusive and conscious possession of 290 grams of charas, which was kept inside a steel container. The accused was also found in possession of currency notes of Rs. 15,330/- and a pocket digital electronic scale. The defence endeavored hard while cross-examining PW-1, PW-2, PW-3, PW-8 and PW-11, but nothing favorable could be extracted from them. PW-10, SHO Gopal Singh Verma carried out resealing process and he has fully corroborated the prosecution story to this effect. PW-3, HHC Gulat Ram, carried rukka from the spot, PW-4, HC Varun Singh, deposited the sample in Forensic Science Laboratory. The case property remained safe under the custody of MHC Nikka Ram (PW-5). Compliance qua Section 57 of the ND&PS Act, by making a special report, was proved by PW-6, HC Bhupender. Thus, the sequence of events stands fully proved.
FSL report, Ex. PW-11/D, clearly establish that the cloth parcel, bearing seven seals of impression 'S' and five seal of impression 'M' were found intact and the same tallied with the specimen of seal impression on NCB form and the seal sample, which was sent ::: Downloaded on - 07/03/2018 23:03:29 :::HCHP 20 alongwith the sealed parcel. The report further shows that the parcel was kept in safe custody of Assistant Chemical Examiner, till the time the report qua the same was signed and dispatched. NCB .
form, Ex. PW-10/B, road certificate, Ex. PW-5/B, abstract of malkhana register, Ex. PW-5/A, special report, Ex. PW-6/A and abstract of diary register, Ex. PW-6/A, further strengthens the prosecution case. PW-1, HC Manoj, PW-2, Shri Kamal Verma, PW-8, SI Jasvir Singh and PW-11, SI Harish Kumar, supported the prosecution case qua the recovery of charas from Ex. P-2 (bag), which contained another bag, Ex. P-3, wherein a steel container, Ex.
PW-4, containing the charas was found. All the above enumerated witnesses were subjected to lengthy cross-examination, but nothing favourable to the accused came out. All the above witnesses have nothing against the accused and by no stretch of imagination they could have roped in the accused falsely, as nothing has come on record that these witnesses had enmity with the accused.
22. The learned counsel for the accused has argued that there are contradictions in the statements of the official witnesses, thus the testimony of only independent prosecution witness, i.e., PW-2, Shri Kamal Verma, cannot be made basis for convicting the accused. He has placed reliance upon a judgment of Hon'ble Supreme Court rendered in Hem Raj and others vs. State of ::: Downloaded on - 07/03/2018 23:03:29 :::HCHP 21 Haryana, AIR 2005 SC 2110, wherein vide paras 9 and 10 it has been held as under:
"9. The fact that no independent witness though available, was examined and not even an .
explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case having regard to the indisputable facts of this case. Amongst the independent witnesses, Kapur Singh was one, who was very much in the know of things from the beginning. Kapur singh is alleged to have been in the company of PW-5 at a sweet stall and both of them after hearing the cries joined PW-4 at Channi Chowk. He was one of those who kept the deceased on a cot and took the deceased to hospital. He was there in the hospital by the time the first I.O. PW-9 went to the hospital. The evidence of the first I.O. reveals that the place of occurrence was pointed out to him by Kapur Singh. His statement was also recorded, though not immediately but later. The I.O. admitted that Kapur Singh was the eye-witness to the occurrence. In the FIR, he is referred to as the eye-witness along with PW-5 Kapur Singh was present in the Court on 6-10-1997. The Addl. Public Prosecutor 'gave up' the examination of this witness stating that it was unnecessary. The trial Court commented that he was won over by the accused and, therefore, he was not examined. There is no factual basis for this comment. The approach of the High Court is different. The High Court commented that his examination would only amount to 'proliferation' of direct evidence. But, we are unable to endorse this view of the High Court. To put a seal of approval on the prosecution's omission to examine a material witness who is unrelated to the deceased and who is supposed to know every detail of the incident on the ground of 'proliferation' of direct evidence is not a correct approach. The corroboration of the testimony of the related witnesses PWs-4 and 5 by a known independent eye-witness could have strengthened the prosecution case, especially when the incident took place in a public place.
10. Non-examination of independent witness by itself may not give rise to adverse inference against the prosecution. However, when the evidence of the alleged eye-witnesses raise serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission of examine the independent witness Kapur Singh, would assume significance. This ::: Downloaded on - 07/03/2018 23:03:29 :::HCHP 22 Court pointed out in Takhaji Hiraji v. Thakore Kubersing Chamansing and others ((2001) 6 SCC
145):-
"................if already overwhelming evidence is available and examination of other witnesses .
would only a repetition or duplication of the evidence already adduced, non-examination of such other witnesses may not be material.
In such a case, the Court ought to scrutinize the worth of the evidence adduced. The Court of facts must ask itself - whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the Court. If the answer be positive then only a question of drawing an adverse inference may arise. If the witnesses already examined are reliable and r the testimony coming from their mouth is unimpeachable the Court can safely act upon it, uninfluenced by the factum of non-examination of other witnesses. In the present case we find that there ware at least 5 witnesses whose presence at the place of the incident and whose having seen the incident cannot be doubted at all. It is not even suggested by the defence that they were not present at the place of the incident and did not participate therein."
It has come in the statements of PW-2, Shri Kamal Verma (independent witness) and I.O. PW-11, SI Harish Kumar, that Shri Anil Kumar was also associated as independent witness and Shri Anil Kumar was given up by the prosecution, being won over by the accused. In fact non-examination of Shri Anil Kumar is not fatal to the prosecution case, especially when PW-2, Shri Kamal Verma, fully supports the prosecution case. Therefore, the judgment (supra) is ::: Downloaded on - 07/03/2018 23:03:29 :::HCHP 23 not applicable to the facts of the present case.
23. Learned counsel for the accused has also placed reliance on another judgment of Hon'ble Supreme Court rendered in .
Vijaysinh Chandubha Jadeja vs. State of Gujarat, (2011) 1 SCC 609, wherein it has been held as under:
"24. Although the Constitution Bench in State of Punjab v. Baldev Singh, (1999) 6 SCC 172, did not decide in absolute terms the question whether or not Section 50 of the NDPS Act was directory or mandatory yet it was held that provisions of sub-section (1) of Section 50 make it imperative for the empowered officer to "inform" the person concerned (suspect) about the existence of his right that if he so requires, he shall be searched before a gazetted officer or a Magistrate; failure to "inform" the suspect about the existence of his said right would cause prejudice to him, and in case he so opts, failure to conduct his search before a gazetted officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from the person during a search conducted in violation of the provisions of Section 50 of the NDPS Act. The Court also noted that it was not necessary that the information required to be given under Section 50 should be in a prescribed form or in writing but it was mandatory that the suspect was made aware of the existence of his right to be searched before a gazetted officer or a Magistrate, if so required by him. We respectfully concur with these conclusions. Any other interpretation of the provision would make the valuable right conferred on the suspect illusory and a farce.
29. In view of the foregoing discussion, we are of the firm opinion that the object with which right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a ::: Downloaded on - 07/03/2018 23:03:29 :::HCHP 24 gazetted officer or a Magistrate. We have no hesitation in holding that in so far as the obligation of the authorised officer under sub- section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires a strict compliance. Failure to comply with the provision would render the recovery of the illicit article .
suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision."
However, in the case in hand the rigors of Section 50 of the ND&PS Act are not applicable, as it was a chance recovery and the contraband was recovered from the accused, who on seeing the police, tried to escape and was apprehended by the police and his bag was searched. Therefore, the judgment (supra) is not applicable to the facts of the present case and the accused cannot draw any help from it.
24. Lastly, the learned counsel for the accused relied upon another judgment of Hon'ble Supreme Court rendered in Gyan Singh & others vs. State of U.P., 1995 Supp(4) SCC 658, wherein it is held that conviction cannot be based upon uncorroborated testimonies of official witnesses. However, in the case in hand the testimonies of official police witnesses are fully corroborated with each other, thus it cannot be said that the statements of official police witnesses are uncorroborated.
25. The learned Additional Advocate General has also placed reliance on State Represented by Inspector of Police vs. ::: Downloaded on - 07/03/2018 23:03:29 :::HCHP 25 Saravanan & another, (2008) 17 SCC 587, wherein vide para 18 of the judgment it has been held as under:
"18. The High Court also held that as there were some discrepancies and improvements in .
the statement of the witnesses, their evidence should not be relied upon. In State of U. P. v. M.K. Anthony, [(1985) 1 SCC 505] this Court has laid down the approach which should be followed by the Court in such cases:
"10. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general r tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper- technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. Cross- examination is an ::: Downloaded on - 07/03/2018 23:03:29 :::HCHP 26 unequal duel between a rustic and refined lawyer."
Even otherwise, it has been said time and again by this Court that while appreciating the evidence of a witness, minor discrepancies on trivial matters without affecting the core of the .
prosecution case, ought not to prompt the court to reject evidence in its entirety. Further, on the general tenor of the evidence given by the witness, the trial court upon appreciation of evidence forms an opinion about the credibility thereof, in the normal circumstances the appellate court would not be justified to review it once again without justifiable reasons. It is the totality of the situation, which has to be taken note of. Difference in some minor detail, which does not otherwise affect the core of the prosecution case, even if present, that itself would not prompt the court to reject the evidence on minor variations and discrepancies."
Indisputably, no person with precision can depose trivial details. An honest and truthfull witness may miss some trivial details, as the power of observation, retention and reproduction is variable individual to individual. In the case in hand only trivial contradictions are there and those contradictions have no force to overturn the conviction of the accused, therefore, the judgment (supra) is fully applicable to the facts of the present case.
26. The learned Additional Advocate General has also relied upon judgment rendered by the Hon'ble Supreme Court in State of Rajasthan vs. Om Prakash, (2007) 12 SCC 381, wherein vide para 12 it has been held as under:
"12. At this juncture it is to be noted that though learned counsel for the respondent tried to highlight certain improvements in the version of the witness it is not of consequence. Irrelevant details which do not in any way corrode the ::: Downloaded on - 07/03/2018 23:03:29 :::HCHP 27 credibility of a witness cannot be leveled as omissions or contradictions........
The judgment (supra) is fully applicable to the present case. In the .
case in hand minor contradictions, as have occurred, do not corrode the prosecution case and the benefit of the same cannot in any way be given to the accused.
27. A combined reading of facts and law only lead to a safest conclusion that the learned Trial Court has rightly appreciated the evidence and applied the law correctly. This Court finds that it will not be correct to reverse the findings of the learned Trial Court, as the same are based on sound reasons and are backed up by reliable evidence.
28. Now, coming to the sentence part, imposed by the learned Trial Court, upon the accused. The learned counsel for the accused has argued that the sentence imposed upon the accused is too harsh. In contrast, the learned Additional Advocate General has argued that four years rigorous imprisonment has only been imposed upon the accused and it could have been ten years. This Court, taking into consideration the quantity of the charas recovered, finds that the sentence of four years is not excessive, however, the learned Trial Court has imposed fine of Rs. 20,000/-
(rupees twenty thousand) and in default of payment of fine ordered ::: Downloaded on - 07/03/2018 23:03:29 :::HCHP 28 the accused to undergo one year's simple imprisonment. This Court finds that simple imprisonment of one year in default of payment of fine of Rs. 20,000/- is too harsh and same is modified. Now, in .
default of payment of fine of Rs. 20,000/- the accused shall under simple imprisonment for six months.
29. The appeal, which sans merits, deserves dismissal and is accordingly dismissed. Pending application(s), if any, shall also stand disposed of.
r to (Chander Bhusan Barowalia)
Judge
6th March, 2018
(virender)
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