Himachal Pradesh High Court
Sumit Kumar Son Of Hari Bhadur vs State Of H.P. Rt on 24 August, 2015
Bench: Sanjay Karol, P.S. Rana
IN THE HIGH COURT OF HIMACHAL PRADESH,
.
SHIMLA:
Cr. Appeal No.112 of 2013.
Judgment reserved on: 13.7.2015
Date of Judgment: August 24, 2015.
___________________________________________________________
of
Sumit Kumar son of Hari Bhadur. ...Appellant.
Vs.
State of H.P. rt ...Respondent.
Coram:
Hon'ble Mr. Justice Sanjay Karol, Judge.
Hon'ble Mr.Justice P.S.Rana, Judge.
Whether approved for reporting1?yes.
For the appellant: Mr. K.B.Khajuria, Legal Aid Counsel.
For the respondent: Mr. V.S.Chauhan, Addl. Advocate
General with Mr. Kush Sharma,
Deputy Advocate General and
Mr. J.S.Guleria, Asstt. Advocate
General.
P.S.Rana, Judge.
JUDGMENT:Present appeal is filed against the judgment and sentence passed by learned Special Judge Kullu HP in Whether reporters of the Local papers are allowed to see the judgment?yes.
::: Downloaded on - 15/04/2017 18:47:26 :::HCHP 2Session Trial No. 28 of 2010 titled State of HP Vs. Sumit .
Kumar and another decided on 23.11.2011.
BRIEF FACTS OF THE PROSECUTION CASE:
2. Brief facts of the case as alleged by prosecution are that on dated 4.4.2010 at 3.45 PM at a place named of Jachhni District Kullu accused persons namely Sumit Kumar and Chaman Lal hatched conspiracy and were found in exclusive and conscious possession of 5.500 Kg charas. It is rt alleged by prosecution that co-accused Sumit Kumar who was in possession of bag was caught and other co-accused Chaman Lal could not be nabbed. It is alleged by prosecution that place of incident was secluded place and investigating officer associated ASI Naresh Chand and ASI Hari Singh as witnesses. It is further alleged by prosecution that investigating officer had suspicion regarding possession of some contraband and investigating officer apprised co-
accused Sumit Kumar about his legal right to be searched either before magistrate or gazetted officer. It is further alleged by prosecution that co-accused Sumit Kumar had given option to be searched by police officials. It is further alleged by prosecution that police officials have also given their personal ::: Downloaded on - 15/04/2017 18:47:26 :::HCHP 3 search to co-accused Sumit Kumar. It is further alleged by .
prosecution that co-accused Sumit Kumar was carrying 5.500 Kg charas in connivance with another co-accused Chaman Lal. It is further alleged by prosecution that investigating officer filled NCB forms in triplicate. It is further alleged by of prosecution that specimen impressions of seal 'T' was obtained on pieces of cloth. It is further alleged by prosecution that investigating officer prepared rukka Ext PW7/A and also rt prepared spot map Ext PW7/B. It is further alleged by prosecution that investigating officer deposited case property along with NCB forms, sample of seal 'T' and other documents with MHC Paras Ram. It is further alleged by prosecution that investigating officer prepared special report Ext PW6/A and the same was submitted to Deputy Superintendent of Police Kullu. It is further alleged by prosecution that FIR Ext PW1/F was also recorded. It is further alleged by prosecution that case property was deposited in malkhana and entry was recorded in the register. It is further alleged by prosecution that thereafter PW1 MHC Paras Ram handed over cloth parcel Ext P1 sealed with six seals of 'T' along with NCB forms in triplicate, sample of seal and docket Ext PW1/D to constable ::: Downloaded on - 15/04/2017 18:47:26 :::HCHP 4 Laxman Dass vide RC No. 41/2010 with the direction to .
deposit the same in FSL Junga for chemical analysis. It is further alleged by prosecution that PW4 HHC Laxman Dass on dated 6.4.2010 deposited case property in the office of FSL Junga vide receipt Ext PW1/E. It is further alleged by of prosecution that investigating officer took into possession copies of special report, abstract of special report register, copy of RC and abstract of register No.19 annexed with rt challan. It is further alleged by prosecution that as per report of FSL Junga the contraband was sample of charas. Charge was framed against co-accused Sumit Kumar under Section 20 of Narcotic Drugs and Psychotropic Substances Act and under Section 25 of the Arms Act 1959. Charge was framed against co-accused Chaman Lal under Section 20 read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act 1985. Accused persons did not plead guilty and claimed trial.
3. Prosecution and accused persons examined following witnesses.
Sr.No. Name of Witness
PW1 HC Paras Ram
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5
PW2 ASI Hari Singh
.
PW3 Krishan Lal
PW4 HHC Laxman Dass
PW5 Lal Singh
PW6 HC Nirat Singh
of
PW7 SI Narayan Singh
PW8 Kapil Sharma
DW1
rt Dr. J.R. Gaur
DW2 C.L. Sharma
DW3 HHC Chet Ram
DW4 Uma Shankar
DW5 Ghanshyam Singh
4. Prosecution also produced following piece of documentary evidence in support of its case:-
Sr.No. Description:
Ex. PW.1/A Abstract of malkhana register
Ex. PW1/B Road certificate
Ex. PW1/C NCB form
Ex. PW1/D Letter sent for chemical
examination of contraband
Ex. PW1/E Receipt of case property
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6
Ex. PX Rapat
.
Ex.PX-1 Rapat No.10 dated 17.5.2011
Ex. PW1/F FIR No.52 dated 4.4.2010
Ex. PW1/G Endorsement of FIR
Ex. PW2/A Memo under section 50 NDPS
Act
of
Ex. PW2/B Memo regarding personal search of police officials.
Ex. PW2/C Sketch map of arm.
Ex. PW2/D Seizure memo of contraband
rt 5.500 Kg.
Ex. PW2/E Specimen impression of seal upon plain cloth.
Ex. PW2/F Arrest Memo of co-accused Sumit Kumar.
Ex. PW5/A Departure report.
Ex. PW6/A Copy of Special report sent to DSP Kullu HP.
Ex. PW6/B Endorsement of DSP regarding receipt of special report.
Ex. PW6/C Abstract of register Ex. PW7/A Rukka Ex. PW7/B Site Plan Ex. PW7/C FSL report Junga HP Ex. PW7/D Arrest Memo of co-accused Chaman Lal dated 1.9.2010 Ex. DW4/A Copy of affidavit filed by Narayan Singh in HP High Court.
Ex. DW4/B Copy of certificate issued by patwari.
Ex. PW4/C Copy of order passed by HP High Court dated 4.1.2011 upon bail application filed by co-accused Chaman Lal.
::: Downloaded on - 15/04/2017 18:47:26 :::HCHP 75. Statement of accused persons were recorded .
under Section 313 Cr.PC. Co-accused Sumit Kumar has stated that he was sitting in tea shop and unclaimed bag was found by police officials. Co-accused Sumit Kumar has stated that police officials took him to police station Bhunter and a of false case was filed against him. Co-accused Chaman Lal stated that false and concocted case filed against him.
6. Learned Special Judge Kullu convicted co-accused rt Sumit Kumar under Section 20 of NDPS Act and under Section 25 of Arms Act. Learned trial Court sentenced convict Sumit Kumar to undergo rigorous imprisonment for ten years and to pay fine of Rs.100000/- (One lac) for the commission of offence punishable under Section 20 of NDPS Act. Learned trial Court further directed that in default of payment of fine the convict Sumit Kumar would undergo further imprisonment of one year. Learned trial Court further directed that convict co-accused Sumit Kumar would undergo rigorous imprisonment for one year and to pay fine of Rs.1000/- (One thousand) for the offence punishable under Section 25 of the Arms Act. Learned trial Court further directed that in default of payment of fine convict Sumit Kumar would further ::: Downloaded on - 15/04/2017 18:47:26 :::HCHP 8 undergo imprisonment for one month. Learned trial Court .
further directed that both sentence would run concurrently.
Learned trial Court further directed that period of detention of convict Sumit Kumar during the trial and investigation of case would set off under Section 428 Cr.PC. Learned trial Court of acquitted co-accused Chaman Lal qua offence punishable under Sections 20 read with section 29 of the NDPS Act.
7. Feeling rt aggrieved against the judgment and sentence passed by learned trial Court appellant Sumit Kumar filed present appeal.
8. We have heard learned Advocate appearing on behalf of appellant and learned Additional Advocate General appearing on behalf of respondent and also gone through the entire record carefully.
9. Point for determination before us is whether learned trial Court did not properly appreciate oral as well as documentary evidence placed on record and whether learned trial Court had committed miscarriage of justice to appellant Sumit Kumar.
::: Downloaded on - 15/04/2017 18:47:26 :::HCHP 9.
10.ORAL EVIDENCE ADDUCED BY PROSECUTION:
10.1 PW1 Paras Ram has stated that he remained posted as Head Constable in police station Bhunter w.e.f.
March 2007 to March 2010. He has stated that he brought of original record of register No.19. He has stated that on dated 4.4.2010 SI Narayan Singh deposited case property with him relating to FIR No.52 of 2010. He has stated that case rt property was consisting of two parcels. He has stated that total charas was 5.500 Kg. He has stated that parcel was sealed. He has stated that along with said parcel, specimen seal impression of seal 'T', NCB forms in triplicate and other documents were also deposited with him. He has stated that investigating officer also deposited another parcel containing an iron chopper (long knife). He has stated that he entered parcels in register No. 19 at serial No.87. He has stated that on dated 5.4.2010 he handed over one parcel containing 5.500 Kg charas to constable Laxman Dass along with specimen of seal impression, NCB forms in triplicate and other documents vide RC No.41 of 2010 with direction to deposit the same with FSL Junga. He has stated that abstract of register ::: Downloaded on - 15/04/2017 18:47:27 :::HCHP 10 No.19 is Ext PW1/A and copy of RC is Ext PW1/B. He has .
stated that before handing over case property to constable Laxman Dass he also filled column No.12 of NCB form. He has stated that constable Laxman Dass deposited case property in the office of FSL Junga on dated 6.4.2010 vide receipt Ext of PW1/E. He has denied suggestion that no rukka mark 'A' was received by him. He has denied suggestion that he did not record FIR. He has denied suggestion that no case property rt was deposited with him. He has denied suggestion that he did not enter case property in register No.19. He has denied suggestion that case property was tampered by him. He has denied suggestion that receipt Ext PW1/E did not bear seal and stamp of FSL Junga.
10.2. PW2 ASI Hari Singh has stated that in April 2010 he was posted in police station Bhunter. He has stated that on dated 4.4.2010 police officials headed by SHO Narain Singh police station Bhunter consisting PW2 Hari Singh, ASI Naresh Chand, HC Pune Ram and constable Krishan Chand were on patrolling duty in official vehicle to detect crimes regarding excise and narcotics. He has stated that when police officials at about 3.45 PM reached at a place near village Jachhni ::: Downloaded on - 15/04/2017 18:47:27 :::HCHP 11 police officials noticed two persons were coming from .
Manikaran side. He has stated that one person was in possession of black coloured rucksack bag on his back. He has stated that when accused persons saw the vehicle of police officials both accused persons tried to run away. He has of stated that one co-accused who was in possession of black coloured rucksack bag on his back ran towards uphill side and second person ran towards Manikarn side. He has stated rt that with the help of police officials co-accused Sumit Kumar was nabbed at a secluded place. He has stated that no independent witness was available.He has stated that upon inquiry co-accused disclosed his name as Sumit Kumar. PW2 identified co-accused Sumit Kumar in Court. He has stated that thereafter SHO had given option to co-accused Sumit Kumar under section 50 of NDPS Act. He has stated that co-
accused Sumit Kumar had given his option to be searched before police offciails. He has stated that thereafter rucksack bag which was in possession of co-accused Sumit Kumar was opened by investigating officer and charas was found in the rucksack bag. He has stated that charas was weighed and same was found 5.500 Kg. He has stated that thereafter ::: Downloaded on - 15/04/2017 18:47:27 :::HCHP 12 recovered charas was again placed in the sealed rucksack bag.
.
He has stated that investigating officer also filled NCB forms in triplicate. He has stated that copy of seizure memo was supplied to co-accused Sumit Kumar. He has stated that investigating officer prepared rukka and the same was sent to of police station Bhunter for registration of FIR. He has stated that seal after use was handed over to him by investigating officer. Witness also identified another co-accused Chaman rt Lal in Court. He has stated that rucksack bag is Ext P3, polythene wrapper is Ext P4 and charas is Ext P5. He has stated that iron chopper is Ext P6. He has denied suggestion that no police official was present near village Jachhni. He has denied suggestion that no charas was recovered from co-
accused Sumit Kumar. He has denied suggestion that no option was given to co-accused Sumit Kumar. He has denied suggestion that police officials found unclaimed bag containing 15 ½ Kg Charas near Chhronallah. He has denied suggestion that co-accused Summit Kumar was nabbed by police officials from a tea shop at Chhrornallah. He has denied suggestion that ten kilograms charas was given to one Budh Ram resident of Ramshila and a false case was filed against ::: Downloaded on - 15/04/2017 18:47:27 :::HCHP 13 co-accused Sumit Kumar. He has denied suggestion that co-
.
accused Chaman Lal was not noticed by him. He has denied suggestion that co-accused Chaman Lal did not fled away from the spot.
10.3. PW3 constable Krishan Lal has stated that on dated of 4.4.2010 he was member of police party. He has stated that at about 3.45 PM when police officials reached near village Jachhni police officials noticed two persons coming from rt Manikaran side.He has stated that when accused persons saw police officials one of co-accused climbed towards uphill side and second co-accused fled towards Manikaran side. He has stated that co-accused Sumit Kumar was in possession of black coloured bag. He has stated that all police officials chased co-accused Sumit Kumar and he was nabbed. He has stated that co-accused Sumit Kumar was directed to remove the bag from his shoulder.He has stated that thereafter investigating officer had given option to co-accused Sumit Kumar as per section 50 of NDPS Act.He has stated that co-
accused Sumit Kumar had given option to be searched before police officials.He has stated that thereafter police officials had given their personal search to co-accused Sumit Kumar.
::: Downloaded on - 15/04/2017 18:47:27 :::HCHP 14He has stated that thereafter bag of co-accused Sumit Kumar .
was searched. He has stated that total 22 ½ pieces of black substance were found in the bag. He has stated that on weighing 5.500 Kg charas was found. He has stated that charas was placed in parcel and sealed by investigating officer of at the spot which was recovered from the possession of co-
accused Sumit Kumar. He has stated that iron chopper Ext P6 was placed in separate cloth parcel which was sealed with seal rt impressions 'T'. He has stated that parcel containing iron chopper is Ext P2. He has stated that NCB forms in triplicate were filled by investigating officer. He has stated that thereafter investigating officer inquired from co-accused Sumit Kumar regarding another co-accused Chaman Lal who fled away from the spot. He has stated that co-accused Sumit Kumar had disclosed the name of another co-accused as Chaman Lal. Witness also identified co-accused Chaman Lal in Court. He has stated that case property was took into possession vide memo Ext PW2/D and rukka was prepared by investigating officer and the same was given to him with direction to take the same to police station Bhunter for registration of FIR. He has stated that he submitted rukka ::: Downloaded on - 15/04/2017 18:47:27 :::HCHP 15 mark 'A' to MHC police station Bhunter. He has stated that .
black coloured bag is Ext P3. He has stated that polythene envelope Ext P4 and charas Ext P5 are the same which were recovered from co-accused Sumit Kumar. He has stated that chopper Ext P6 is the same which was recovered from bag Ext of P3. He has denied suggestion that police officials were not present at the spot. He has denied suggestion that co-
accused Sumit Kumar did not climb towards uphill side. He rt has denied suggestion that no option was given to co-accused Sumit Kumar under Section 50 of NDPS Act. He has denied suggestion that no bag was found from the possession of co-
accused Sumit Kumar. He has denied suggestion that no charas was recovered from co-accused Sumit Kumar. He has denied suggestion that co-accused Sumit Kumar was falsely implicated in present case. He has denied suggestion that no seizure memo was prepared at the spot by investigating officer. He has denied suggestion that no letter was sent to police station Bhunter. He has denied suggestion that police officials found a bag containing 15 ½ Kg Charas. He has denied suggestion that 10 Kg charas was given to Budh Ram ::: Downloaded on - 15/04/2017 18:47:27 :::HCHP 16 resident of Ramshila. He has denied suggestion that false case .
was filed against accused persons.
10.4. PW4 HHC Laxman Dass has stated that he was posted as constable on general duty in police station Bhunter since February 2010. He has stated that on dated 5.4.2010 of MHC police station Bhunter handed over to him parcel Ext P1 along with NCB forms in triplicate, copy of FIR, copy of seizure memo, sample seal and docket with direction to deposit the rt same in the office of SFSL Junga. He has stated that he deposited case property in the office of SFSL Junga on dated 6.4.2010 vide receipt Ext PW1/E. He has stated that case property remained intact in his custody. He has denied suggestion that no case property was given to him by MHC police station Bhunter. He has denied suggestion that he did not deposit case property in the office of SFSL Junga. He has denied suggestion that case property was tampered by him.
10.5. PW5 constable Lal Singh has stated that from the year 2006 to March 2011 he remained posted as constable on general duty at police station Bhunter. He has stated that he brought the record of rapat No.22 dated 4.4.2010. He has stated that SI Narayan Singh got recorded his departure ::: Downloaded on - 15/04/2017 18:47:27 :::HCHP 17 report along with other police officials. He has stated that copy .
of the report is Ext PW5/A which is correct as per original record. He has denied suggestion that record of rapat No.22 was later on fabricated.
10.6 PW6 HC Nirat Singh has stated that since of January 2007 to 11th April 2010 he was posted as Reader to Additional Superintendent of Police Kullu. He has stated that on dated 5.4.2010 rt at about 4 PM the then Deputy Superintendent of Police Nihal Chand handed over special report to him relating to FIR No. 52 of 2010. He has stated that he recorded entry of relevant register at serial No.33. He has stated that copy of special report is Ext PW6/A. He has stated that abstract of register is Ext PW6/C which is correct as per original record. He has denied suggestion that no special report Ext PW6/A was given to him by the then Deputy Superintendent of Police. He has denied suggestion that all entries were recorded later on in fabricated manner.
10.7. PW7 SI Narayan Singh has stated that he was posted SHO in police station Bhunter since September 2008.
He has stated that on dated 4.4.2010 he along with ASI Naresh Chand, ASI Hari Singh, HC Pune Ram and constable ::: Downloaded on - 15/04/2017 18:47:27 :::HCHP 18 Krishan Chand were on patrolling duty in government vehicle.
.
He has stated that at about 3.45 PM when they reached near a place Jachhni they noticed two persons coming from Manikaran side. He has stated that when two persons saw police officials one person went towards uphill side and of another person who was in possession of black coloured rucksack bag on his back had climbed towards forest side. He has stated that co-accused Sumit Kumar was nabbed. He has rt stated that place of incident was secluded and isolated place and no independent person could be available. He has stated that thereafter he associated ASI Naresh chand and ASI Hari Singh as witnesses. He has stated that co-accused Sumit Kumar disclosed his address as resident of Nepal. He has stated that rucksack bag which was in possession of co-
accused Sumit Kumar was removed from his person. He has stated that co-accused Sumit Kumar was apprised about his legal right to be searched before magistrate or gazetted officer.
He has stated that co-accused Sumit Kumar had given consent to be searched by police officials. He has stated that thereafter police officials have given their personal search. He has stated that rucksack bag which was in possession of co-
::: Downloaded on - 15/04/2017 18:47:27 :::HCHP 19accused Sumit Kumar was opened and charas was found. He .
has stated that charas was weighed and the same was found 5.500 Kg. He has stated that NCB form was filled in triplicate.
He has stated that copy of seizure memo was supplied to accused persons free of cost. He has stated that rukka was of prepared and same was sent to police station Bhunter for registration of FIR. He has stated that he prepared site plan Ext PW7/B and recorded the statement of witnesses as per rt their versions. He has stated that case property, NCB form, sample of seal and seizure memo were deposited with MHC Paras Ram. He has stated that special report was prepared by him and same was delivered to Deputy Superintendent of Police Kullu. He has stated that case property was deposited in the office of FSL Junga. He has stated that on receipt of chemical report Ext PW7/C he prepared challan. He has denied suggestion that co-accused Sumit Kumar was consuming tea in the tea stall and was falsely implicated in present case. He has denied suggestion that charas was not recovered from co-accused Sumit Kumar. He has denied suggestion that he tampered with case property. He has denied suggestion that black coloured bag was planted against ::: Downloaded on - 15/04/2017 18:47:27 :::HCHP 20 accused persons. He has denied suggestion that charas was .
not sent for chemical examination. He has denied suggestion that all documents were filled in police station.
10.8. PW8 Kapil Sharma has stated that he was posted as Assistant Director and Assistant Chemical Examiner in of NDPS Division of SFSL Junga. He has stated that he was appointed as scientific officer in NDPS Division SFSL Junga on dated 9.1.2009. He has stated that one sealed cloth parcel rt along with reference letter No. 1199/5A dated 5.4.2010 issued by SHO police station Bhunter District Kullu, Xerox copy of FIR, seizure memo, NCB forms in triplicate and sample seal of 'T' were brought by constable Laxman Dass police station Bhunter District Kullu vide RC No. 41/2010 dated 5.4.2010.
He has stated that parcel was bearing six seals impression 'T'.
He has stated that seals were found intact and tallied with specimen seal sent by forwarding authority. He has stated that parcel was kept in his safe custody till the report was signed and dispatched. He has stated that on opening the parcel exhibit was weighed on electronic scale and same was found 5.500 Kg. He has stated that on chemical examination of exhibit sample of charas was found. He has stated that ::: Downloaded on - 15/04/2017 18:47:27 :::HCHP 21 report Ext PW7/C bears his seal and signature and the same .
is correct. He has stated that NCB form filled in triplicate bears his signature and same is correct. He has denied suggestion that he had not carried out any specialization in the field of narcotics. He has denied suggestion that he is not of competent to give report relating to NDPS cases.
10.9. DW1 Dr.J.R.Gaur has stated that he was posted as Director SFSL Junga since 6.1.1998. He has denied that rt his appointment as Director was challenged before Hon'ble High Court. Self stated that OA was filed regarding his deputation as Assistant Director in SFSL Junga. He has stated that he has no experience of examining NDPS cases. He has stated that there is microscope in the NDPS division. He has stated that NDPS division is located in the first floor. He has stated that he had heard that appointment of Mr.Kapil Sharma as Assistant Director was challenged in the Hon'ble High Court of HP. He has stated that Mr. Kapil Sharma was appointed through Public Service Commission as Scientific officer and thereafter as Assistant Director by government of HP.
::: Downloaded on - 15/04/2017 18:47:27 :::HCHP 2210.10 DW2 C.L.Sharma Assistant Chemical Examiner .
has stated that he was working in State FSL Junga for the last 21 years. He has stated that he is not frequent visitor of NDPS division. He has stated that he could not state whether use of potassium hydroxide could destroy sample.
of 10.11. DW3 HHC Chet Ram has stated that he was posted as HHC on general duty in police station Bhunter. He has stated that he brought the summoned record. He has rt stated that as per summoned record official electronic scale was issued to police station Bhunter on dated 3.3.2011. He has stated that electronic scale was available. He has stated that some of investigating officers have purchased their own kits in Himachal Pradesh and they are using kits including weighing scales in the cases.
10.12 DW4 Sh Uma Shankar Junior Assistant posted in H.P. High Court has stated that he brought the summoned record. He has stated that document Ext DW4/A is true and correct copy of affidavit. He has stated that documents Ext DW4/B and Ext DW4/C are true and correct copies of record brought by him.
::: Downloaded on - 15/04/2017 18:47:27 :::HCHP 2310.13. DW5 Ghanshyam Singh Chauhan has stated that .
in 1995 he joined HP University as lecturer in chemistry department. He has stated that he had qualified his Ph.D in organic chemistry with polymer specialization from same University. He has stated that in HP university there is no of specialization qua narcotic drugs and psychotropic substances. He has stated that in his opinion potassium hydroxide is strong base and chloral hydrate is mild acid. He rt has stated that their reactions are different when mixed with contents of charas. He has stated that after completing M.Sc specialized training in analysis of narcotic drugs is provided.
He has stated that after specialized training sample of contraband could be analyzed.
11. Submission of learned Advocate appearing on behalf of appellant that prosecution failed to prove that appellant was apprised about his legal right to be searched either before magistrate or gazetted officer and on this ground appeal filed by appellant be accepted is rejected being devoid of any force for the reasons hereinafter mentioned. Present case is not a case of prior information regarding commission of offence under NDPS Act. Present case is a case of chance ::: Downloaded on - 15/04/2017 18:47:27 :::HCHP 24 recovery. It is the case of prosecution that on dated 4.4.2010 .
at about 3.45 PM police officials were on patrolling duty and when they reached near Jachhni two persons came from opposite side and when they saw police officials they fled from the spot and appellant namely Sumit Kumar was caught who of was in possession of bag. It is the case of the prosecution that bag of appellant Sumit Kumar was searched and 5.500 Kg charas was found in the bag of appellant Sumit Kumar. It was rt held in case reported in AIR 2003 SC 7 Bhartbhai Bhagwan Ji Bhai Vs. State of Gujarat that in chance recovery mandatory provision of Section 50 of NDPS Act would not be applicable.
Also see AIR 2014 SC 2564 titled State of HP Vs. Sunil Kumar and also see AIR 2001 SC 1002 titled Gurbax Vs. State of Haryana. Also see 2015 (1) SLC 162 titled State of HP Vs. Puran Chand. Even PW2 Hari Singh has stated in positive manner that option was given to appellant as per provision of Section 50 of NDPS Act. PW2 Hari Singh has stated in positive manner that appellant Sumit Kumar had given his option to be searched before police officials. Even PW3 constable Krishan Lal h as stated in positive manner that option was given to appellant Sumit Kumar as per provision of Section 50 ::: Downloaded on - 15/04/2017 18:47:27 :::HCHP 25 of NDPS Act. PW3 Krishan Lal has stated that appellant had .
given his option that he should be searched before police officials. Even PW7 Narayan Singh has specifically stated in positive manner that option was given to appellant as per provision of Section 50 of NDPS Act. Testimonies of PW2 Hari of Singh, PW3 Krishan Lal and PW7 Narayan Singh to this effect are trust worthy, reliable and inspire confidence of Court.
There is no reason to disbelieve the testimonies of PW2, PW3 rt and PW7 to this effect.
12. Another submission of learned Advocate appearing on behalf of appellant that link evidence qua sending of case property to FSL Junga is missing in the present case and on this ground appeal filed by appellant be accepted is also rejected being devoid of any force for the reasons hereinafter mentioned. PW1 Paras Ram has specifically stated in positive manner that on dated 5.4.2010 he handed over one parcel containing 5.500 Kg charas to constable PW4 Laxman Dass along with specimen seal 'T', NCB forms in triplicate and other documents vide RC No.41 of 2010 dated 5.4.2010 with direction to deposit the same in the office of FSL Junga. PW4 HHC Laxman Dass has specifically ::: Downloaded on - 15/04/2017 18:47:27 :::HCHP 26 stated in positive manner that on dated 5.4.2010 MHC police .
station Bhunter handed over him parcel Ext P1 which was sealed with seal 'T' along with NCB forms in triplicate, copy of FIR, copy of seizure memo, sample seal and docket with direction to deposit the same in the office of SFSL Junga. PW4 of HHC Laxman Dass has stated in positive manner that he deposited case property at SFSL Junga on dated 6.4.2010 vide receipt Ext PW1/E. PW8 Kapil Sharma Assistant Chemical rt Examiner NDPS Division SFSL Junga has specifically stated that one sealed parcel along with reference letter No.1199/5A dated 5.4.2010, Xerox copy of FIR, seizure memo, NCB forms in triplicate and sample seal of 'T' was brought by constable Laxman Dass police station Bhunter vide RC No.41/2010 dated 6.4.2010. PW8 has specifically stated that seals were intact and tallied with specimen seal sent by forwarding authority. Testimonies of PW1 Paras Ram, PW4 Laxman Dass and PW8 Kapil Sharma are trustworthy, reliable and inspire confidence of Court. There is no positive, cogent and reliable evidence on record in order to prove that PW1, PW4 and PW8 have hostile animus against appellant at any point of time.
Hence it is held that link evidence of sending parcel of ::: Downloaded on - 15/04/2017 18:47:27 :::HCHP 27 contraband to SFSL Junga proved on record beyond .
reasonable doubt in present case.
13. Another submission of learned Advocate appearing on behalf of appellant that learned Special Judge has failed to consider the fact that description of bag does not of mention in the chemical report Ext PW7/C and on this ground appeal filed by appellant be accepted is also rejected being devoid of any force for the reasons hereinafter mentioned. We rt have carefully perused report Ext PW7/C submitted by SFSL Junga. State Forensic Science Laboratory Junga has specifically mentioned in report reference No. 1199/5A dated 5.4.2010 and FIR No. 52 of 2010 dated 4.4.2010. State Forensic Science Laboratory Junga has specifically mentioned in examination report date of receipt, mode of receipt and description of the parcel. In view of the fact that SFSL Junga has specifically mentioned in examination report (1) Reference number (2) FIR number (3) Date of receipt (4) Mode of receipt (5) Description of parcel. We are of the opinion that non mentioning of description of bag is not fatal to prosecution case because in the present case material fact is the recovery of contraband from exclusive and conscious possession of co-
::: Downloaded on - 15/04/2017 18:47:27 :::HCHP 28accused Sumit Kumar which is duly proved on record as per .
oral and documentary evidence adduced by parties on record.
14. Another submission of learned Advocate appearing on behalf of appellant that no independent witness was examined by prosecution and on this ground appeal filed of by appellant be accepted is also rejected being devoid of any force for the reasons hereinafter mentioned. PW7 Narayan Singh has specifically stated that place of incident was rt secluded and isolated place and no independent witness was available. PW2 ASI Hari Singh has stated in positive manner that place of incident was secluded place and no independent person was available. PW2 Hari Singh and PW7 Narayan Singh have satisfactorily explained the reasons for non association of independent witness. It was held in case reported in 1996 (3) SCC 338 titled Tahir Vs. State (Delhi) that conviction could be given on the testimony of police officials.
Also see 2012 (4) SCC 722 titled Govindaraju @ Govinda Vs. State. Also see 2007 (7) SCC 625 titled Girja Prasad Vs. State of M.P. It was held in case reported in AIR 1973 SC 2783 titled Nathu Singh Vs. State of M.P that the mere fact that witness examined in support of prosecution case were police officials ::: Downloaded on - 15/04/2017 18:47:27 :::HCHP 29 is not strong enough to discard their evidence. It was held that .
police officials should not be treated as interested witness.
Also see AIR 1985 SC 1092 titled State of Gujarat Vs. Raghunath. It was held in case reported in AIR 2015 SC 2488 titled Kulwinder Singh and another Vs. State of Punjab that if of evidence of official witnesses is trustworthy and credible the same should not be rejected solely on the ground of non examination of independent witnesses. Also see 2001 (1) SCC rt 652 titled State of Govt. of NCT Delhi Vs. Sunil and another. It is held that in chance recovery association of independent witnesses was not mandatory requirement of law.
15. Another submission of learned Advocate appearing on behalf of appellant that sample seal was not handed over to the witnesses and same was handed over to ASI Hari Singh and on this ground appeal filed by appellant be accepted is also rejected being devoid of any force for the reasons hereinafter mentioned. We have carefully perused the seizure memo placed on record. As per seizure memo placed on record ASI Hari Singh is the eye witness of seizure memo.
It is held that it is proved on record that seal after use was ::: Downloaded on - 15/04/2017 18:47:27 :::HCHP 30 handed over to ASI Hari Singh who is the eye witness of .
seizure memo.
16. Another submission of learned Advocate appearing on behalf of appellant that in view of testimonies of DW1 Dr.J.R.Gaur, DW2 C.L.Sharma, DW3 HHC Chet Ram, of DW4 Uma Shankar and DW5 Ghanshyam Singh the appeal filed by appellant be accepted is also rejected being devoid of any force for the reasons hereinafter mentioned. We are of the rt opinion that DW1 to DW5 were not present at place Jachhni near Manikaran on dated 4.4.2010 at 3.45 PM when 5.500 Kg charas was recovered from exclusive and conscious possession of appellant. DW1 to DW5 are not eye witnesses of recovery of contraband. Recovery of contraband from exclusive and conscious possession of appellant is proved on record beyond reasonable doubt as per oral testimonies of eye witnesses and documentary evidence placed on record in present case.
17. Another submission of learned Advocate appearing on behalf of appellant that there are material contradictions in the testimony of police officials and on this ground appeal be accepted is also rejected being devoid of any ::: Downloaded on - 15/04/2017 18:47:27 :::HCHP 31 force for the reasons hereinafter mentioned. Appellant did not .
point out any material contradiction which goes to the root of case. It is well settled law that minor contradictions are bound to come in criminal case when testimony of prosecution witnesses is recorded after a gap of sufficient time. In the of present case contraband i.e. 5.500 Kg charas was recovered from exclusive and conscious possession of the appellant on dated 4.4.2010 at 4.30 PM and statement of prosecution rt witnesses were recorded by learned trial Court on dated 8.3.2011, 17.5.2011, 28.6.2011 and 8.7.2011. It is well settled law that minor contradictions in criminal case should be ignored when testimony of prosecution witnesses is recorded after a gap of sufficient time. See 2010 (9) SCC 567 titled C.Muniappan and others Vs. State of Tamil Nadu. See AIR 1972 SC 2020 titled Sohrab and another Vs. The State of Madhya Pradesh, see AIR 1985 SC 48 titled State of UP Vs. M.K.Anthony, see AIR 1983 SC 753 titled Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat, see AIR 2007 SC 2257 titled State of Rajasthan Vs. Om Parkash, see 2009 (11) SCC 588 titled Prithu Chand and another Vs. State of HP, see 2009 (9) SCC 626 titled State of UP Vs. Santosh Kumar and ::: Downloaded on - 15/04/2017 18:47:27 :::HCHP 32 others, see AIR 2009 SC 151 titled State Vs. Saravanan and .
another,see AIR 1988 SC 696 titled Appabhai and another Vs. State of Gujarat, see AIR 1999 SC 3544 titled Rammi Vs. State of M.P, see 2000(1) SCC 247 titled State of H.P. Vs. Lekh Raj and another, see 2004 (10) SCC 94 titled Laxman Vs. of Poonam Singh and others also See 2004 (7) SCC 408 titled Dashrath Singh Vs. State of UP. See 2012 (10) SCC 433 titled Kuriya and another Vs. State of Rajasthan.
rt
18. As per chemical analysis report placed on record it is proved beyond reasonable doubt that as per scientific test such as physical identification, chemical and chromatographic analysis and after microscopic examination it is proved that charas was recovered from exclusive and conscious possession of co-accused Sumit Kumar. PW8 Kapil Sharma Assistant Chemical Examiner NDPS division SFSL Junga had proved the report submitted by SFSL Junga. Testimony of PW8 Kapil Sharma Assistant Chemical Examiner is also trustworthy, reliable and inspires confidence of Court. There is no reason to disbelieve the testimony of PW8 Kapil Sharma.
There is no evidence on record in order to prove that PW8 ::: Downloaded on - 15/04/2017 18:47:27 :::HCHP 33 Kapil Sharma has hostile animus against appellant at any .
point of time.
19. Another submission of learned Advocate appearing on behalf of appellant that appellant was sitting in tea shop and unclaimed bag was found by police officials and of thereafter police officials also took him to police station and false case was filed against appellant and on this ground appeal filed by appellant be accepted is also rejected being rt devoid of any force for the reasons hereinafter mentioned. The plea of appellant that false case was planted upon appellant when appellant was sitting in a tea shop is defeated on the concept of ipse dixit (Assertion made without proof). Appellant did not examine owner of tea shop and appellant also did not examine any other persons who were present in tea shop in order to prove the fact that unclaimed bag was found by police officials when appellant was sitting in tea shop. The defence of appellant is not proved on record in the present case. On the contrary it is proved on record that 5.500 Kg charas was found from exclusive and conscious possession of co-accused Sumit Kumar in the presence of PW2 ASI Hari Singh and PW3 Krishan Lal. Oral testimonies of prosecution witnesses are ::: Downloaded on - 15/04/2017 18:47:27 :::HCHP 34 corroborated by documentary evidence i.e. abstract of .
malkhana register, NCB forms, seizure memo, site plan, special report and SFSL report.
20. In view of the above stated facts appeal filed by appellant is dismissed. Judgment and sentence passed by of learned Special Judge are affirmed. Case property will be confiscated to the State of HP after expiry of limitation for filing further legal proceedings. File of learned trial Court rt along with certify copy of judgment will be sent back forthwith. File of Cr. Appeal No. 112 of 2013 after due completion be consigned to record room. Appeal is disposed of. Pending applicant(s) if any are also disposed of.
(Sanjay Karol), Judge.
(P.S.Rana), Judge.
August 24 ,2015(R) ::: Downloaded on - 15/04/2017 18:47:27 :::HCHP 35 .
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