Punjab-Haryana High Court
Leela Parkash And Another vs State Of Haryana on 12 January, 2012
Author: S.S. Saron
Bench: S.S. Saron
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
......
Criminal Appeal No.642-DB of 2006
Date of decision: 12.01.2012.
Leela Parkash and another
..... Appellants
Versus
State of Haryana
..... Respondent
CORAM: HON'BLE MR. JUSTICE S.S. SARON
HON'BLE MR. JUSTICE M. JEYAPAUL
Present: Mr. Baljinder Singh, Advocate for
Mr. K. S. Dhaliwal, Advocate for the appellants.
Mr. H.S. Deol, Addl. Advocate General, Haryana.
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S.S. SARON, J.
This criminal appeal has been filed by Leela Parkash son of Karam Singh and Med Ram son of Kewal Ram residents of Samtad, District Kullu (H.P.) against the judgment of conviction dated 28.10.2005 and the order of sentence dated 29.10.2005 passed by the learned Judge, Special Court, Panipat whereby the appellants have been convicted for the offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substance Act, 1985 (Act-for short) and sentenced to undergo rigorous imprisonment for a period of 15 years each; besides, pay a fine of Rs.2,00,000/- each and in default of payment of fine to undergo further rigorous imprisonment for a period of 2 years by the defaulting convict.
The FIR (Ex.PB/1) has been registered on the basis of memo Criminal Appeal No. 642-DB of 2006 -2- (ruqa) (Ex.PB) sent by Bir Pal Singh, SI, Special Staff, Panipat (PW-7) to the SHO Police Station, Chandni Bagh, Panipat. It is stated by Bir Pal Singh, SI (PW-7) that on 01.01.2004, he along with ASI Jai Narain (PW-6), MHC Sunil Dutt, Constable Rakam Singh, Constable Sultan Singh and Constable Sukhan Pal in a Government Jeep No.HR-06-7770 driven by Constable Amrish was present at Sanoli Road, HUDA, Bye-Pass Panipat in connection with checking crime. At that time, by chance, Suraj Parkash (PW-1) met him and he started talking with Suraj Parkash (PW-1). While they were conversing, two boys were seen coming on foot from Sonali side carrying a black colour bag. They were holding the bag from its two sides with their hands. The said boys on seeing the police party at once turned back and started walking. On account of suspicion, SI Bir Pal Singh (PW-7) with the help of his companions apprehended them. On inquiry they disclosed their respective names as Leela Parkash (appellant No.1) and Med Ram (appellant No.2). Bir Pal Singh SI (PW-7) had a suspicion that they were carrying some narcotic substance. They were informed by giving them notices that they were carrying some narcotic substance and their bag was to be searched. The two apprehended boys were asked as to whether they wanted the search to be conducted in the presence of some gazetted officer or a Magistrate. They stated that for them he (Bir Pal Singh SI PW-7) was their officer and they wanted the search to be conducted by him; besides, they had no objection if the search was conducted by him. Thereafter SI Bir Pal Singh (PW-7) in their presence conducted search of the bag and charas was recovered from the bag. After arranging weights and measures, the substance in the bag was weighed and it was found to be 12 kilograms of charas. From the recovered charas, 20 grams was separated and taken as sample and a parcel was prepared. The remaining charas was sealed with seal 'JN' and vide memo Criminal Appeal No. 642-DB of 2006 -3- taken in possession. The signatures of the witnesses were taken on the memo. The accused Leela Parkash and Med Ram (appellants No.1 and 2) by having in their possession 12 kilograms of charas had committed an offence under Section 20 of the Act. Accordingly, the writing was sent to the Police Station through Constable Rakam Singh for registration of a case (FIR). After registration of the case, its number was asked to be informed; besides, special report was asked to be sent to senior officers. SI Bir Pal Singh (PW-7) along with his companions was busy in the investigation at the spot. On receipt of the writing, vide endorsement (Ex.PB/2), FIR No.1 dated 01.01.2004 (Ex.PB/1) under Section 20 of the Act was registered at Police Station Chandni Bagh by Rajender Singh ASI (PW-3). Carbon copies of the FIR were sent to Superintendent of Police, Illaqa Magistrate, Area Officer, Panipat. The special report was sent through constable Himal Singh. The police file along with the original writing was sent to SI Bir Pal Singh (PW-7) at the spot through the Constable who had brought the writing (Ex.PB). Jai Bhagwan Inspector (PW-2) on 01.01.2004 was posted as Station House Officer, Chandni Bagh. On receiving information from Bir Pal Singh SI (PW-
7), he reached the spot with his staff in a Government jeep where Bir Pal Singh SI (PW-7) produced before him both the accused (appellants) and the witnesses along with the case property and sample seal. Jai Bhagwan Inspector (PW-2) verified the facts and affixed his seal 'JB' on each of the parcel and the seal after use was kept with him. He directed Bir Pal Singh SI (PW-7) to deposit the case property with the MHC. Bir Pal Singh SI (PW-7) on directions of Jai Bhagwan Inspector (PW-2) deposited the case property with the MHC. After completion of investigation, police report (challan) was filed in the Court.
The learned Judge, Special Court, Panipat on 14.07.2004 Criminal Appeal No. 642-DB of 2006 -4- charged the appellants on the allegations that on 01.01.2004 in the area of village Umra Kheri, they both were found in possession of 12 kilograms charas without any permit or licence and thereby committed an offence punishable under Section 20 of the Act. The appellants were directed to be tried by the Court for the said offence. The charge sheet was read over and explained to the accused (appellants) in simple Hindi. The appellants by their separate statements, heard and understood the charge framed against them. They pleaded not guilty to the same and claimed trial.
The prosecution in order to establish its case examined Suraj Parkash (PW-1) who was conversing with Bir Pal Singh SI (PW-7) when the appellants were seen coming on foot and on account of suspicion that they raised, they were apprehended, Jai Bhagwan Inspector (PW-2), ASI Rajinder Singh (PW-3) who received ruqa (Ex.PB) and recorded formal FIR (Ex.PB/1) and also made endorsement (Ex.PB/2) on the ruqa, Constable Babu Ram (PW-4) who tendered in evidence his affidavit (Ex.PC), Head Constable Rohtash Kumar (PW-5) who tendered in evidence his affidavit (Ex.PD), ASI Jai Narain, CIA Staff, Panipat (PW-6) and Bir Pal Singh, Incharge Special Staff, Panipat (PW-7). Besides, documents including the FSL report (Ex.PA) in terms of which the sample taken in possession was identified as charas were tendered in evidence. The statements of the appellants in terms of Section 313 of the Code of Criminal Procedure (Cr.P.C-for short) were recorded. Both of them stated that they were innocent and had been falsely implicated in the case. Nothing was recovered from their possession and the recovery had been planted on them; besides, the police had obtained their signatures on some blank papers.
In defence, Maya Ram (DW-1), Mehar Chand (DW-2) and Constable Surinder Kumar (DW-3) were examined. Besides, documents i.e. Criminal Appeal No. 642-DB of 2006 -5- letter dated 16.01.2004 (Ex.DI) to Director, FSL Madhuban, Karnal, application (Ex.DA) of Kanta Devi wife of Med Ram (appellant No.2) addressed to the Incharge Police Post, Aani District Kullu (H.P), UPC receipt (Ex.DB) in respect of letter (Ex.DA), identity card (Ex.DC) of Mehar Chand Chauhan (DW-2), Pardhan, Gram Panchayat, Vishaladhar, Block Aani District Kullu (H.P.), certificate (Ex.DD) issued by Mehar Chand Chauhan (DW-2), Pardhan, Gram Panchayat, Vishaladhar, Block Aani District Kullu (H.P.) in respect of Leela Parkash (appellant No.1), character certificate (Ex.DE) in respect of Leela Parkash (appellant No.1) issued by Mehar Chand Chauhan (DW-2), Pardhan, Gram Panchayat, Vishaladhar, Block Aani District Kullu (H.P.), character certificate (Ex.DF) in respect of Med Ram (appellant No.2) issued by Mehar Chand Chauhan (DW-2), Pardhan, Gram Panchayat, Vishaladhar, Block Aani District Kullu (H.P.), character certificate (Ex.DG) in respect of Leela Parkash issued by Smt. Meena Kumari, Pardhan Gram Panchayat Takrasi Block Aani District Kullu (H.P.), extract of Register No.19 (Ex.DH) and DDR No.14 (Ex.DJ) were tendered in evidence by the appellants. The learned trial Court after considering the evidence and material on record convicted the appellants for the offence under Section 20 of the Act and sentenced them to undergo rigorous imprisonment for a period of 15 years each; besides, pay a fine of Rs.2,00,000/- each and in default of payment of fine it was ordered that the defaulting convict shall undergo further rigorous imprisonment for a period of 2 years. Aggrieved against the same, the appellants have filed the present appeal.
Learned counsel for the appellants has contended that the appellants have been falsely implicated in the case and the prosecution has not been able to establish its case and show that the contraband was recovered from them. It is submitted that there are said to be various pieces Criminal Appeal No. 642-DB of 2006 -6- of the contraband that were recovered. However, the sample was taken from one lot only which does not represent a composite sample. Therefore, according to the learned counsel the recovered substance cannot be said to be a narcotic substance. In support of his contention, learned counsel for the appellants cites Gaunter Edwin Kircher versus State of Goa, Secretariat Panji, Goa, AIR 1993 Supreme Court 1456; besides, it is contended that Jai Bhagwan Inspector/SHO (PW-2) though has stated that he affixed his seal of 'JB' on each parcel. However, on the case property (Ex.P1) that was recovered, it is accepted that his seal 'JB' was not there; besides, it is submitted that there are other discrepancies in the testimonies of the prosecution witnesses which clearly show that its case against the appellants is not established beyond shadow of reasonable doubt. Moreover, it is submitted that the defence evidence has not been fully appreciated.
In response, learned counsel for the State has submitted that the prosecution has proved and established its case against the appellants beyond shadow of reasonable doubt and the learned trial Court has recorded cogent and convincing reasons for convicting and sentencing the accused. It is submitted that the entire contraband was in one bag in a candle shape and 20 grams sample was taken from one lot. Therefore, it is submitted that there is no infirmity in the manner of taking sample and the judgment of the Supreme Court in the case of Gaunter Edwin Kircher versus State of Goa (supra) is not applicable to the facts of the present case. It is submitted that the FSL report (Ex.PA) shows that physical appearance of the sample was greenish brown solid substance. Therefore, it is submitted that the contraband being a solid substance, the sample was rightly drawn and on chemical analysis it was found to be charas. It is submitted that there are no discrepancies in the statements of the prosecution witnesses and the Criminal Appeal No. 642-DB of 2006 -7- discrepancies, if any, are trivial in nature and do not affect the prosecution case; besides, the defence witnesses that have been examined by the appellants and the documents tendered in evidence by them do not in any manner dislodge the prosecution case.
We have given our thoughtful consideration to the contentions of the learned counsel for the parties and with their assistance gone through the record of the case.
Bir Pal Singh SI (PW-7) was posted as Incharge Special Staff, Panipat and he along with SI Jai Narain (PW-6), EHC Sunil, Constable Rattan Singh (Sic. Rakam Singh) and Constable Sultan Singh were patrolling in an official jeep No.HR-06-7770 which was being driven by Constable Amrish. They were at Sonali Road, HUDA bye-pass, Panipat. Suraj Parkash (PW-1) per chance met SI Bir Pal Singh (PW-7) and they started conversing amongst themselves. In the meantime, the accused (appellants) were seen coming from the side of Sonali carrying a black coloured bag which was caught hold of by both of them. On seeing the police party, they turned back and started walking briskly. On account of suspicion that they raised, they were apprehended by SI Bir Pal Singh (PW-7) with the help of other officials. On inquiry, the persons who were apprehended disclosed their names as Leela Parkash (appellant No.1) and Med Ram (appellant No.2). On account of suspicion, the appellants were given notices (Ex.PE and Ex.PF) under Section 50 of the Act informing them that they had a right to get their search conducted before a gazetted officer or a Magistrate. The notices (Ex.PE and Ex.PF) were signed by Jai Narain ASI (PW-6), Suraj Parkash (PW-1) and Constable Sultan Singh. The appellants in their respective replies (Ex.PE/1 and Ex.PF/1) reposed faith in SI Bir Pal Singh (PW-7). The replies (Ex.PE/1 and Ex.PF/1) were attested by aforesaid witnesses i.e. Jai Narain ASI (PW- Criminal Appeal No. 642-DB of 2006 -8-
6), Suraj Parkash (PW-1) and Constable Sultan Singh. The accused (appellants) also signed on the notices and replies. Thereafter, search of the bag was carried out by Bir Pal Singh SI (PW-7) and 12 kilograms of charas was recovered from it. Out of the total contraband recovered, 20 grams was separated as sample and on weighing the remaining contraband, it came to be 12 kilograms. Bir Pal Singh SI (PW-7) affixed the seal of 'JN' over the sample and remainder parcel and the contraband was taken in possession vide recovery memo (Ex.PG), which was signed by Jai Narain ASI (PW-6), Suraj Parkash (PW-1) and Constable Sultan Singh. The seal after use was handed over to Jai Narain ASI (PW-6). Thereafter, Bir Pal Singh SI (PW-7) sent memo (ruqa) (Ex.PB) through Constable Rattan Singh (Sic. Rakam Singh) on the basis of which formal FIR (Ex.PB/1) was registered. Bir Pal Singh SI (PW-7) prepared a rough site plan (Ex.PF) with correct marginal notes. Around 1.00 pm, Jai Bhagwan Inspector/SHO, Police Station Chandni Bagh (PW-2) came at the spot along with his staff in his official jeep. Bir Pal Singh SI (PW-7) produced the accused (appellants) along with case property before him who after verification affixed his seal of 'JB' over the sample, remainder and sample seal. Jai Bhagwan Inspector/SHO (PW-2) directed Bir Pal Singh SI (PW-7) to get a medical examination of the accused conducted and to put them in the lock up. He also directed Bir Pal Singh SI (PW-7) not to tamper with the case property. During deposition in Court, Bir Pal Singh SI (PW-7) had seen the case property in Court which was Ex.P1. He recorded statements of witnesses and on completion of the investigation, police report under Section 173 Cr.P.C was forwarded by Jai Bhagwan Inspector/SHO, Police Station, Chandni Bagh (PW-2) on 29.01.2004. Bir Pal Singh SI (PW-7) was cross-examined and he inter alia stated that he had not received any secret information and they had started from the Police Station at about 10.00 Criminal Appeal No. 642-DB of 2006 -9- am. They reached the spot at about 11.00 am. Suraj Parkash (PW-2) was not his relative and he had come at the spot within a few minutes after reaching there. The accused (appellants) were sighted at about 11.15 am. He could not say by what conveyance Suraj Parkash (PW-1) had come at the spot. He denied the suggestion that Suraj Parkash (PW-1) was a stock witness of the police and had been joined in many other cases by the police. It is stated that the accused persons (appellants) were seen coming from Sonali road from the western direction. The police comprised of 6-7 persons and they apprehended the accused (appellants) after moving about 15/20 paces. It is stated that the contraband was in candle shape and in other shapes also (three/four types). It is stated that he had separated the sample from one lot only. He could not tell whether the contraband was packed in a polythene or wrapped in a cloth. He had carried weighing scale which was of floor balance. The weights were of 2 kgs, 1 kg, 10 grams, 20 grams, 100 grams etc. It is further stated that he had affixed the seal of 'JN' over the case property and the SHO Jai Bhagwan (PW-2) had affixed the seal of 'JB'. Bir Pal Singh SI (PW-7) had affixed four seals of 'JN' and SHO (PW-2) had affixed two seals of 'JB' over the remainder parcel. He had affixed two seals of 'JN' over the sample and the SHO (PW-2) had affixed one seal of 'JB'. It is stated by Bir Pal Singh SI (PW-7) that he had not taken the seal of Jai Narain ASI (PW-6) as it was his seal. The weighing and packing material was procured from a near-by shop by EHC Sunil and he returned in five/ten minutes. He had tried to join independent witnesses in the investigation but except Suraj Parkash (PW-1) no body joined the investigation. He had seen the case property while deposing in Court and it bears only four seals. It is voluntarily stated that two seal impressions were there but the seals were broken. It was incorrect to suggest that there were three seals of 'JB' over Criminal Appeal No. 642-DB of 2006 -10- the remainder parcel. He denied the suggestion that nothing was recovered from the possession of the accused persons. He also denied as incorrect that the appellants had forcibly been lifted from their houses in Himachal Pardesh on 29.12.2003 by a police party consisting of ASI Jai Narain (PW-6) and other officials along with one Jeeta of Pipli Khera. It was denied as incorrect that the contraband pertained to Jeeta and the same was planted upon the appellants as they had refused to bribe them. It was denied as incorrect that one Tharmi and Maya Ram had witnessed the police party lifting the appellants forcibly. It was denied as incorrect that the police party had come in a vehicle bearing No.DLC-8379. It was also stated as incorrect to suggest that the Panchayat of village Samtate had lodged a complaint with Bir Pal Singh SI (PW-7) regarding forcibly lifting the appellants. He denied that he filed a reply to the application moved by the police of Police Station, Aani. It is stated by Bir Pal Singh SI (PW-7) that he prepared the site plan prior to sending the ruqa (memo). He had sent the ruqa (memo) at about 12- 12.15 pm. He had inscribed the details over the ruqa (memo) and recovery memo prior to sending the ruqa (memo).
Jai Narain ASI (PW-6) was posted in CIA Staff at Panipat on 01.01.2004. On that day, he along with SI Bir Pal Singh (PW-7), MHC Sunil Dutt, Constable Rakam Singh, Constable Sultan Singh and Constable Sukan Pal were present at Sonali Road HUDA bye-pass in connection with patrolling duty. They were in a Government jeep being driven by Constable Amrish. At that time Suraj Parkash (PW-1) met the police party and while he was talking with Bir Pal Singh SI (PW-7), the accused (appellants) came from the side of Sonali road carrying a black coloured bag which was held by both of them. On seeing the police party, they turned back and started walking briskly. On the basis of suspicion of some narcotic substances in the bag, they were Criminal Appeal No. 642-DB of 2006 -11- apprehended by Bir Pal Singh SI (PW-7). On inquiry, they disclosed their names as Leela Parkash and Med Ram (appellants). Jai Narain ASI (PW-6) was part of the police party that had apprehended the appellants. He has supported the prosecution case and deposed on the lines of Bir Pal Singh SI (PW-7). He was cross-examined by the learned counsel for the defence. It is stated that the place where the accused (appellants) were apprehended was a busy place. Suraj Parkash (PW-1) came at about 11.00 am. Jai Narain ASI (PW-6) denied the suggestion that Suraj Parkash (PW-1) was a relative of Bir Pal Singh SI (PW-7). It is also stated as incorrect that Suraj Parkash (PW-1) was a Government Servant. It was also denied that SI Bir Pal Singh (PW-7) always cited Suraj Parkash (PW-1) as a witness in every case. Suraj Parkash (PW-1) it is stated is a resident of village Kaneli, Distt. Rohtak. Suraj Parkash (PW-1) was earlier known to Bir Pal Singh SI (PW-7). He was talking with Bir Pal Singh SI (PW-7) for the last 10-15 minutes. He remained with the police party for about a hour. They had no prior secret information. It is stated that charas was lying open in the bag. It was round in shape. They did not number the pieces. It is stated that sample was taken from the whole contraband and not from one piece. Sample was separated by Bir Pal Singh SI (PW-7). The contraband was weighed excluding the bag. It was a hand balance scale. It was stated that except the contraband there was nothing in the bag. He denied the suggestion that the accused (appellants) were apprehended from their house on 22.09.2003 and he had also accompanied the police party. It was denied that the contraband was recovered from Jeeta and later on planted on the accused (appellants). It was denied that they had gone to Kullu in Vehicle No.DLC-8379 and forcibly brought the accused (appellants) and involved them in the present case. It was denied as incorrect that a Panchayat was convened and they had told the Panchayat Criminal Appeal No. 642-DB of 2006 -12- that they would free the accused.
Suraj Parkash (PW-1) is an independent witness. It is stated by him that on 01.04.2004, he was going from Panipat to Babail. On the way, he met SI Jeet Pal Singh (sic. Bir Pal Singh SI PW-7) who was in his official jeep on the round about of Sector-9 along with police officials. As Suraj Parkash (PW-1) was knowing him, he stopped there and started talking with him. In the meantime, two boys (appellants) were coming from the side of Sonali road carrying a black colour bag which they were together holding it. On seeing the police party, they got scared and turned around and started walking briskly. On the basis of suspicion, the police officials apprehended them. SI Bir Pal Singh (PW-7) gave them notices that they could get their search conducted before a Gazetted officer. The examination of Suraj Parkash (PW-1) was deferred as the other witnesses of recovery were not present and the defence counsel had raised objection of the evidence being recorded in piece meal. On further examination-in-chief, it is stated by Suraj Parkash (PW-1) that the Investigating Officer (Bir Pal Singh SI PW-7) gave notice (Ex.PE) to Med Ram (appellant No.2) to the effect that he could get his search conducted before a Gazetted officer or a Magistrate. The same was signed by Suraj Parkash (PW-1) and other witnesses. Vide reply (Ex.PE/1), the accused (Med Ram-appellant No.2) opted to be searched by the Investigating Officer (PW-7). The reply (Ex.PE/1) contained the signatures of Suraj Parkash (PW-1). In terms of the reply (Ex.PE/1), the accused (Med Ram-appellant No.2) opted to be searched by the Investigating Officer (PW-
7). A similar notice (Ex.PF) was given to accused (Leela Parkash-appellant No.1). The notice (Ex.PF) bears his signatures. Leela Parkash (appellant No.1) in terms of his reply (Ex.PF/1) opted to be searched before the Investigating Officer (PW-7). Both the notices (Ex.PE and Ex.PF) and the Criminal Appeal No. 642-DB of 2006 -13- replies (Ex.PE/1 and Ex.PF/1) were signed by Suraj Parkash (PW-1). From the bag of the accused (appellants), on search by the Investigating Officer (PW-7), charas was recovered which on weighment came to 12 kilograms out of which 20 grams were separated as sample. The sample was made into a parcel and sealed with seal of 'JN'. The remaining contraband was repacked in the same bag and sealed with seal 'JN' by the Investigating Officer (PW-7). The contraband was taken in possession vide recovery memo (Ex.PG) which bears the signatures of Suraj Parkash (PW-1). Thereafter, Jai Bhagwan Inspector/SHO, Police Station, Chandni Bagh (PW-2) came at the spot. The accused (appellants) along with the witnesses and the case property were produced before him. Inspector Jai Bhagwan (PW-2), it is stated again got the contraband weighed and affixed his seal 'JB' over the remainder parcel. Two seals of 'JB' it is stated were affixed over the remainder parcel. At the said stage, learned Public Prosecutor stated that Suraj Parkash (PW-1) was suppressing the truth and he be declared hostile. Learned Public Prosecutor was allowed to cross-examine him. Suraj Parkash (PW-1) in his cross- examination by the public prosecutor stated he had heard his statement (Ex.PH). It is stated that though his statement was recorded by the police but the police had not mentioned regarding the weighment being carried out again before the SHO (PW-2). It is stated that it was incorrect to suggest that the second weighment was carried out in the presence of SHO (PW-2) and, therefore, the same was not mentioned in his statement (Ex.PH). It is stated that in his statement (Ex.PH) he did not state before the police that in his presence, the SHO (PW-2) had affixed his seal 'JB' over the case property, sample parcel and sample seal. He was confronted with portion A to A1 of Ex.PH wherein it was so recorded. It was also stated as incorrect to suggest that the SHO (PW-2) had affixed his seal of 'JB' over the sample seal and Criminal Appeal No. 642-DB of 2006 -14- sample parcel apart from the case property in his presence. It was stated as incorrect to suggest that he had partially resiled from his statement earlier made to the police as he had compromised the matter with the accused persons (appellants) outside the Court. In cross-examination by the defence it was stated that he (PW-1) cannot definitely say whether the accused persons (appellants) were the same persons from whom the contraband was recovered as the incident was one and a half year old. It was further stated as incorrect to suggest that he had signed over blank papers. It is further stated as incorrect to suggest that the notices were not written over the papers when he had signed the same. Suraj Parkash (PW-1) stated that he had signed over blank papers and subsequently the investigating officer (PW-2) inscribed something over the same. He could not tell whether the accused persons (appellants) had signed over the notices in his presence. It was stated that charas was in candle shape. The seal after use, it is stated by Suraj Parkash (PW-1), was handed over to one police official perhaps Jai Narain ASI (PW-
6). The seals on behalf of SHO (PW-2) were affixed by Jai Narain ASI (PW-
6) and after use the seal was handed over to Jai Narain ASI (PW-6) by the SHO (PW-2). The SHO (PW-2) had affixed three seals over the sample as well as the remainder contraband. The seal of 'JN' over the case property were four in number. The same were affixed by Jai Narain ASI (PW-6) on the direction of the Investigating Officer (PW-7). There was one seal of 'JN' over the sample and four seals over the remainder. The seal of 'JN' was handed over to Jai Narain ASI (PW-6) after it was used. SHO (PW-2) had come at the spot and had remained there for about half a hour/one hour. He had not read his statement but he signed the same. The entire writing work and weighment was done in the police station. In the end it is stated that the accused present in Court were not the persons who were apprehended by the Criminal Appeal No. 642-DB of 2006 -15- police on that day. The notice it is stated was written in the police station.
A perusal of the prosecution evidence shows that the appellants were apprehended by the police party headed by Bir Pal Singh SI (PW-7). From the search of the bag which they were carrying together, 12 kilograms of charas was recovered. The recovery was verified by Jai Bhagwan SHO (PW-2). The prosecution case is somewhat supported by Suraj Parkash (PW-1) who is an independent witness. Suraj Parkash (PW-1) in his examination-in-chief accepts that notices (Ex.PE and Ex.PF) were served on the accused (appellants); besides, he also accepts that the appellants filed their replies (Ex.PE/1 and Ex.PF/1). He specifically named the appellant No.1-Leela Parkash. It is also stated that from the bag of the accused (appellants) on the search by IO (PW-7) charas was recovered which on weighment came to 12 kilograms out of which 20 grams was separated as sample. In cross-examination by the defence counsel initially, it is stated by Suraj Parkash (PW-1) that he could not definitely say whether the accused persons (appellants) were the same persons from whom the contraband was recovered as the incident was one and a half year old. He also denied the suggestion as incorrect that he had signed over the blank papers. He also denied the suggestion that the notices were not written over the papers when he had signed the same. He also states that charas was in candle shape. At the end of his cross-examination he states that the entire writing work and weighment was done in the police station; besides, the accused present in Court were not the same persons who were apprehended by the police on that day. It may, however, be noticed that Suraj Parkash (PW-1) accepts his signatures on the notices (Ex.PE and Ex.PF) and the replies to the notices (Ex.PE/1 and Ex.PF/1); besides, the recovery memo (Ex.PG) of charas is signed by Suraj Parkash (PW-1) and it is accepted that Criminal Appeal No. 642-DB of 2006 -16- the contraband was taken in possession vide recovery memo (Ex.PG) which bears his signatures. Therefore, the presence of Suraj Parkash (PW-1) at the time of the incident is accepted and admitted. His signatures on the notices (Ex.PE and Ex.PF), the replies to the notices (Ex.PE/1 and Ex.PF/1) and the recovery memo (Ex.PG) are admitted. Initially he states that he could not say whether the appellants were the same persons from which the contraband was recovered as the incident was one and a half year old from the date of his deposition in Court. Towards the end he stated that the appellants were not the same persons. The principle of 'falsus in uno, falsus in omnibus' is not applicable and, therefore, the statement of Suraj Parkash (PW-1) which supports the case of the prosecution can be relied upon. In Bhagwan Singh versus State of Haryana , AIR 1976 SC 202, the value of evidence of a hostile witness was considered. It was held that where the Court grants permission to the Prosecutor to cross-examine his own witness, thus characterizing him as a hostile witness, that fact does not completely efface his evidence. The evidence remains admissible in the trial and there is no legal bar to base a conviction upon his testimony if corroborated by other reliable evidence. In fact it is quite well settled that the evidence of a hostile witness is not to be absolutely discarded if given in favour of the prosecution or the accused but it is to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or the defence may be accepted. As such the statement of Suraj Parkash (PW-1) an independent witness coupled with the statements of Bir Pal Singh SI (PW-
7) and that of Jai Narain (PW-6) who were present at the spot at the time of apprehending the accused (appellants) as also at the time of recovery of the contraband i.e. charas weighing 12 kilograms as also from the deposition of Jai Bhagwan Inspector/SHO Police Station Chandni Bagh (PW-2) who came Criminal Appeal No. 642-DB of 2006 -17- to the spot at the time of recovery and verified the same, it is to be taken that the contraband was indeed recovered from the bag of the appellants which they were together holding in their hands. Therefore, the prosecution has been able to establish its case and prove that the contraband was recovered from the appellants.
The contention of the learned counsel for the appellants that the sample was taken from one lot and not from various pieces in the lot in the facts and circumstances, is not such a circumstance or a discrepancy which would in any manner disprove the prosecution case. The ratio of the judgment in the case of Gaunter Edwin versus State of Goa (supra) referred to by the learned counsel for the appellants would not apply to the facts and circumstances of the present case. In the said case on the search of a foreigner, a polythene pouch in which there was tobacco, one cigarette paper packet and two cylindrical pieces of "charas" and the two pieces of charas were weighed and found to be 7 grams and 5 grams. However, only one of the pieces weighing less than 5 grams was sent for chemical analysis. The other piece weighing 7 grams or part of it by way of sample was not sent for analysis. The chemical examiner examined the piece weighing less than 5 grams and found it to contain charas. From the said report, it was observed that it could not be presumed or inferred that the substance in the other piece weighing 7 grams also contained charas. It was held in the absence of any expert evidence, the material not sent for chemical examination could be any other material like tobacco or other intoxicating type which are not covered by the Act. It was observed that in the absence of positive proof that both the pieces recovered from the accused contained charas only, it could not be said that 12 grams of charas was recovered from the accused. Accordingly directions were given to the concerned authorities to send the entire quantity Criminal Appeal No. 642-DB of 2006 -18- seized for chemical analysis so that there may not be any dispute regarding the quantity seized. The question that was considered was primarily to determine the quantity of the contraband which was said to have been recovered and as to whether it was small quantity or not. It may be noticed that in the said case from the polythene pouch which was recovered there was tobacco, one cigarette paper packet and two cylindrical pieces of "charas" and one of the pieces of charas found to be weighing 7 grams was not sent for chemical analysis. In the present case, from the bag that was recovered from the possession of the accused (appellants), there was only charas and no other material. Besides, the sample was taken from one lot which was there in the bag and contained 12 kilograms of charas. Bir Pal Singh SI (PW-7) in his cross-examination has stated that the contraband was in candle shape and in other shapes also (three/four types). He had separated the sample from one lot only. ASI Jai Narain (PW-6) in his cross- examination has stated that charas was lying open in the bag and it was in round shape. They did not number the pieces. The sample it is stated was taken from the whole contraband and not from one piece. The sample was separated by Bir Pal Singh SI (PW-7). Therefore, the position in the present case is that there was contraband weighing 12 kilograms in a bag which was in candle shapes and was found in three/four pieces in the bag but comprised in one lot. Besides, the present case is not one where question of quantity of the recovered contraband is involved and is to be determined. At the most it can be said that there were three/four pieces of the contraband and sample was taken from one of them. The one from which sample was taken had indeed been found to be charas and it is not a case that the said piece was of small quantity only. The charas having been recovered from one lot in the bag, the entire contraband is to be taken as a narcotic substance. Criminal Appeal No. 642-DB of 2006 -19-
The FSL report (Ex.PA) shows that one sealed cloth/paper parcel sealed with two seals of 'JN' and one seal of 'JB' enclosing a metallic container containing the exhibits was received. The physical appearance of the sample was observed to be greenish, brown solid substance. The weight of received sample was mentioned as 20 grams. The sample, therefore, being in a solid substance and was 20 grams of weight out of which 3 grams were analysed and found to contain charas. The sample having been taken from whole lot would not make any difference as it was a composite sample contained in the bag. Therefore, the same was validly taken and sent for chemical analysis and as per FSL report (Ex.PA) , the seals were found intact. Therefore, the recovered contraband was indeed charas.
The contention of learned counsel for the appellants that Jai Bhagwan Inspector/SHO (PW-2) in his cross-examination accepts that the remaining contraband (Ex.P1) did not contain seal of 'JN' is inconsequential as the seal 'JB' of Jai Bhagwan SHO (PW-2) is found intact in the sample that was sent for chemical analysis. As already noticed, the FSL report (Ex.PA) mentions two seals of 'JN' and on seal of 'JB' were found in the case on a metallic container. As such the mere fact that it was not there on the remaining contraband (Ex.P1) is inconsequential.
The defence that has been set up by the appellants that they were apprehended from their village may also be considered. In defence, the appellants have examined Maya Ram resident of Mrichh, Distt. Kullu (DW-1) who had stated that on 29.12.2003 he was present at Hotel Chaman in Kullu. He was working in that hotel along with Leela Parkash and Med Ram (appellants). Three police officials along with one Ajit Singh and a driver had come to the hotel in a car. Earlier also Ajit Singh used to come to that hotel. He used to bring narcotics along with him in that hotel. The aforesaid police Criminal Appeal No. 642-DB of 2006 -20- officials took away Leela Parkash and Med Ram (appellants) at gun point along with them in the car. He (Maya Ram DW-1) had inquired from the police as to why they were carrying Leela Parkash and Med Ram (appellants) but they replied that he should not worry as they would be sent back after 2-3 days. At that time, there were many persons and one Tharmi son of Dila Ram was also present. Thereafter Maya Ram (DW-1) informed the family of the appellants regarding the incident. Then he had moved an application (Ex.DA) from Kanta Rani wife of appellant No.2-Med Ram. This aspect was objected to and the objection was kept open. The application (Ex.DA) was addressed to the In charge Officer, Police Post Aani and was sent by UPC (Under Postal Certificate). It bears his signatures. The UPC receipt was Ex.DB. He identified the signatures of Kanta Rani wife of Med Ram (appellant No.2) on Ex.DA. In cross-examination, it is stated that he had got proof with regard to his working in the aforesaid hotel but he had not brought the same with him on that day. The name of the hotel was Chaman Hotel. It is in Kotasiri area of Kullu. Adjoining the hotel there were some shops. He knew Leela Parkash (appellant No.1)for the last 5-6 years. He was unmarried. Kanta Rani is the wife of Med Ram (appellant No.2). As she was from the nearby area, therefore, he identified her signatures. He denied the suggestion that the accused persons (appellants) were carrying business of narcotics and he was also associated with them in that business. It was denied as incorrect that they being his fellow workers he had deposed falsely in their favour to save them.
Mehar Chand (DW-2) stated that he was Sarpanch of village Vishaladhar of Sub Division Aani, Distt. Kullu. The houses of the accused were situated in the same village to which he belonged. They were the same persons who were present in the Court and were from his village. Ex.DC was Criminal Appeal No. 642-DB of 2006 -21- copy of the identity card of his being Sarpanch of the aforesaid village. The certificates Ex.DD, Ex.DE and Ex.DF were in his hand and bore his seals and signatures. The same was objected to. It is stated that village Takrasi was his neighbouring Panchayat. Meena Thakur was Sarpanch of the said village and he (Mehar Chand DW-2) identified her signatures on Ex.DG, which was objected to. Mehar Chand (DW-2) and Meena Thakur jointly received cheques from the Government for development of both the villages. They used to go in the meetings of Block Officer usually. It is stated that both the accused (appellants) were forcibly taken by the Police of Haryana on 29.12.2003. A meeting to this effect was convened in the village on 30.12.2003. The father of Leela Parkash (appellant No.1) and wife of Med Ram (appellant No.2), Maya Ram (DW-1), father-in-law of Med Ram came there and informed them about the forcible taking away of the appellants. On 02.01.2004, they all went to the Police Station Aani regarding the accused (appellants) being apprehended. They collected the members and Sarpanch of the village Takrasi and told them about this incident. No case regarding NDPS Act was pending against them in their area. The character of both the accused (appellants) was good. In cross-examination, it is submitted that he did not know how many police officials of Haryana went to his village. When the accused were apprehended from Khani (sic. Aani), he was not present at that time but the people of the village told him about this fact. It was incorrect to suggest that the accused were not related to him. It is accepted as correct that the handwriting on Ex.DG, Ex.DE, Ex.DD and Ex.DF were of the same person. It is voluntarily stated that Secretary of both the villages was one person. Therefore, he prepared the documents of his own hands. No application regarding the accused (appellants) being taken away from his village was moved by him in Haryana to any S.P. or higher officers etc. but he Criminal Appeal No. 642-DB of 2006 -22- moved an application in police station Aani. He had not brought the said application on that day with him. It was incorrect to suggest that he had procured false certificates which were written by him in his own handwriting. It was also incorrect to suggest that the accused persons (appellants) had been falsely implicated in the case by the Haryana Police. It was further incorrect to suggest that being a co-villager of the accused (appellants) he was deposing falsely in order to help them.
It may be noticed that one aspect which is brought out from the deposition of Mehar Chand (DW-2) is that Maya Ram (DW-1) is the father-in- law of Med Ram (appellant No.2); besides, Mehar Chand (DW-2) accepts that the appellants were not apprehended by the Haryana Police in his presence and he was only informed about it by others. Therefore, his evidence as regarding the taking away of the appellants is in the nature of hear-say evidence. The documents that have been produced are Ex.DA which is an application submitted by Kanta Devi wife of Med Ram (appellant No.2) to the In charge, Police Post Aani. It is submitted that her husband Med Ram (appellant No.2) and her maternal nephew (Bhanja) Leela Parkash (appellant No.1) on 29.12.2003 (Monday) were called to the bus stand on telephone from some private work by Ajit Kumar and three other policemen who came in a small vehicle from Haryana. Thereafter, both were made to sit in the small vehicle and started the vehicle. Then both the persons started crying and weeping near the hotel but the vehicle owner did not pay any attention to them. Their house was also near the bus stand. In case of need Maya Ram (DW-1) and Tharmi could give complete account at the spot. The addresses of Maya Ram and Tharmi are mentioned. It was requested that proper action may be taken in this matter at the earliest. The application is witnessed by Maya Ram (DW-1) and Tharmi. Ex.DB is UPC receipt in respect of letter Criminal Appeal No. 642-DB of 2006 -23- (Ex.DA) addressed to Police Post Aani. The postal stamp is 15.01.2004. Ex.DC is an identity card of the Panchayat Raj Department of the Government of Himachal Pradesh mentioning Mehar Chand Chauhan (DW-2) as Pradhan of Gram Panchayat Vishaladhar. Ex.DD is a letter dated 12.01.2004 addressed by Mehar Chand, Pradhan (DW-2) Gram Panchayat Vishaladhar in which it is stated that Leela Parkash and Med Ram (appellants) are permanent residents of village Samted, Post Office Degad, Tehsil Aani Distt. Kullu. Mehar Chand Chauhan (DW-2) Pradhan of Gram Panchayat Vishaladhar in Himachal Pradesh certified that both the said persons were kidnapped on 29.12.2003 by Haryana residents and they were taken in a small vehicle towards Panipat, by making an excuse of some work. On 01.01.2004 i.e. after four days, a false case had been registered regarding carrying of 12 kilograms charas by threatening both the persons. Ex.DE is the character certificate issued by Mehar Chand (DW-2) as regards Leela Parkash (appellant No.1) and Ex.DF is the character certificate of Med Ram (appellant No.2). Both are stated to be of good character. Ex.DG is another letter by the Pardhan of Gram Panchayat, Takrasi namely Meena Thakur. She had certified that Leela Parkash and Med Ram (appellants) had been kidnapped on 29.12.2003 by Haryana residents and taken in a small vehicle towards Panipat, Haryana with an excuse of some work. After four days on 01.01.2004, a false case had been planted against them of selling 12 kilograms of charas. The above persons had been kidnapped by the Haryana residents. From the said documents and depositions it has been sought to be shown that the accused persons (appellants) were indeed picked up by the Haryana Police on 29.12.2003 from Kullu. However, the said documents are of a period after the incident and these could have been prepared later. The application (Ex.DA) given by Kanta Devi and UPC receipt (Ex.DB) are Criminal Appeal No. 642-DB of 2006 -24- dated 15.01.2004. The application (Ex.DD) of Mehar Chand Pardhan (DW-2) is dated 12.01.2004. The character certificates Ex.DF and Ex.DG are dated 12.01.2004 and 14.01.2004. The incident in the FIR is of 01.01.2004. Therefore, not much reliance can be placed on the said documents as they relate to a period which is quite after the incident. Therefore, from the defence evidence that has been led, it cannot be said that the appellants were picked up from Kullu on 29.12.2003 and thereafter a false case planted on them.
The defence also examined Constable Surinder Kumar Police Station Chandni Bagh as DW-3. He had brought register No.19 whrein entry regarding deposit of the case property is entered at serial No.1065 . Ex.DH is the carbon copy of the original which he had brought. The original was seen and returned. Constable Surinder Kumar (DW-3) had also brought register No.21 (Ex.DI) and register No.2 (Ex.DJ). The same were correct copies of the originals. Besides, the register of 'rawangi' (departure register) was with SI Bir Pal Singh (PW-7) of Special Staff and the same was not with him and he could not produce the same. In cross-examination, it is stated that the handwriting of Ex.DH, Ex.DI and Ex.DJ were not in his hand and were written by Dharam Singh Head Constable. Therefore, he could not say about these documents. It is stated by Surinder Kumar Constable (DW-3) that against entry No.1065 on register No.19 (Ex.DH) there is an entry regarding samples wherein description of two seals of sample have been mentioned therein. The question was objected to but the objection was overruled. It was stated as correct that the two samples were sent to the Director, FSL with the seals 'JN' and 'JB'. Therefore, nothing substantial can be derived in favour of both the appellants on the deposition of Surinder Kumar Constable (DW-3). Rather he states that entry No.1065, there is an entry wherein descriptions of Criminal Appeal No. 642-DB of 2006 -25- two seals of sample have been mentioned. It is also accepted that the sample was sent to Director, FSL with the seals of 'JN' and 'JB'.
In the circumstances, the prosecution has established its case and the learned trial Court has recorded cogent and convincing reasons for convicting the appellants and there is no reason to dislodge the same. However, we feel that sentence of 15 years imprisonment with the fine of Rs.2,00,000/- that has been imposed is liable to be reduced to that of 10 years with fine of Rs.1,00,000/- and in default of payment of fine to further undergo imprisonment of three months as the appellants are first offenders and nothing has been brought on record to show that they had even earlier indulged in similar activities. Besides, the incident is of 01.01.2004 and the appellants have been in custody throughout. Therefore, with the hope that they would improve themselves and not indulge in unauthorized trafficking in drugs, it would be just and expedient to reduce the period of imprisonment and fine that has been imposed.
Accordingly, while upholding the conviction, the sentence of imprisonment is reduced from 15 years to 10 years of rigorous imprisonment and the fine of Rs.2,00,000/- each is reduced to Rs.1,00,000/- each and in default of payment of fine, the defaulting appellant shall undergo further imprisonment for three months.
With the modification in the sentence, the appeal is dismissed.
(S.S. SARON) JUDGE (M. JEYAPAUL) JUDGE 12.01.2012 A.Kaundal