Himachal Pradesh High Court
Gurvinder Singh vs State Of Himachal Pradesh on 14 September, 2021
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
ON THE 14th DAY OF SEPTEMBER, 2021
BEFORE
HON'BLE MR. JUSTICE SANDEEP SHARMA
CRIMINAL APPEAL NO. 333 OF 2017
Between:
1. GURVINDER SINGH,
S/O SH. SWARAN SINGH,
R/O BASTI, WARD NO.18,
DISTRICT SANGROOR,
PUNJAB.
2. KULDEEP SINGH,
S/O SH. JAIB SINGH,
R/O SUNDER BASTI,
WARD NO.18,
DISTRICT SANGROOR,
PUNJAB.
....APPELLANTS
(BY MR. NIKHIL CHUGH, ADVOCATE)
AND
1. STATE OF HIMACHAL PRADESH
....RESPONDENT
(BY MR. SUDHIR BHATNAGAR
& MR. DESH RAJ THAKUR,
ADDITIONAL ADVOCATES GENERAL
WITH MR. KAMAL KISHORE SHARMA &
MR. NARENDER THAKUR,
DEPUTY ADVOCATES GENERAL)
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2
Whether approved for reporting?. Yes.
.
This appeal coming on for hearing this day, the Court passed the following:
JUDGMENT
Instant appeal filed under Section 374 (2) of the Cr.PC., lays challenge to the judgment passed by Learned Special Judge (II) (Additional Session Judge), Kullu, H.P., whereby the appellants-accused (hereinafter referred to as "the accused"), came to be convicted and sentenced to undergo rigorous imprisonment for seven years and to pay fine of Rs.
70,000/- and in default of payment of fine, to further undergo simple imprisonment for one year, for having committed offences punishable under Sections 20, 25 and 29 of NDPS Act (herein after referred to as "the Act").
2. Precisely, story of the prosecution, as emerge from the record, is that on 9.11.2014, at 7:00 pm, police party consisted of PW-12 HC Deepak Kumar, PW-11 Constable Naveen Kumar and HHC Lal Singh of Police Post Jari, was present at a distance of 10 meters in front of Police Post, Dunkhara, Jari District Kullu on Bhuntar-Manikaran road. Police party stopped one scooter bearing registration No. PB-07H-7372 coming from Manikaran side being driven by accused No.1 namely Gurwinder Singh. On the askance of police, accused disclosed their names to be ::: Downloaded on - 31/01/2022 23:04:19 :::CIS 3 Gurvinder Singh and Kuldeep Singh. PW-12 HC Deepak Kumar asked the .
accused to produce the documents of the scooter, who in turn, opened the dickey of the scooter, underneath the handle in front, where one yellow coloured cloth bundle was found kept there. Accused were asked to get the bundle checked, but they started making excuses to get the bundle searched. Investigating Officer PW-12 HC Deepak Kumar asked the PW-
11 Constable Naveen Kumar to bring the independent witnesses. PW-11 Constable Naveen Kumar on the askance of PW12 HC Deepak Kumar brought PW9 Dhale Ram, who at that relevant time, was working as security guard in MPCL. PW-12 HC Deepak Kumar after having associated PW9 Dhale Ram and PW-11 Constable Naveen Kumar as witnesses gave their personal search to the accused, but nothing incriminating was found in their possession, regarding which memo Ext.PW9/A was prepared and signed by the witnesses as well as accused persons. On opening the said bundle, seven chappad of black coloured substance wrapped with transparent polythene were found. PW-12 HC Deepak Kumar, I.O., prepared the identification memo Ext.PW9/C at police post Jari, which was situate at the distance of 10 meters from the spot. I.O. alongwith recovered substance, scooter of the accused persons and witnesses came to Police Post Jari, where ASI Dharam Chand was also associated in the ::: Downloaded on - 31/01/2022 23:04:19 :::CIS 4 investigation. On weighing, the recovered substance was found to be 722 .
grams. Recovered charas was again put in the said yellow cloth and put inside the cloth parcel, which was sealed with six seals of seal impressions "T". Polythene wrappers were also sealed in a separate cloth parcel and sample seal of seal "T" was separately obtained on piece of cloth Ext.PW9/E. PW-12 HC Deepak Kumar filled NCB-I form in triplicate Ext.PW1/A and sample seal was also taken on the same, which was handed to PW9 Dhale Ram, vide memo Ext.PW9/G. RC of the scooter Ext.PW11/B and DL Ext.PW11/C were also taken into custody by the police. As per RC of the vehicle, person namely Tilak Raj of Chandigarh was found to be the original owner of the said scooter. The recovered substance/charas, alongwith RC of the scooter, DL and scooter alongwith keys were taken into possession vide seizure memo Ext.PW9/B in the presence of the witnesses. PW9 Dhale Ram and PW-11 Constable Naveen Kumar put their signatures on the seizure memo Ext.PW9/B. During investigation, it was found that the accused persons had purchased the said charas from one Nepali National at Kasol. PW-12 HC Deepak Kumar, I.O., prepared ruqua Ext.PW12/A and handed over the same to PW-11 Constable Naveen Kumar with the directions to take the same to PS Kullu for registration of the case, on the basis of which, FIR Ext.PW6/A came to ::: Downloaded on - 31/01/2022 23:04:19 :::CIS 5 be registered at the PS Kullu. On 9.11.2014, PW6 Inspector Neel Chand .
after having received ruqua Ext.PW12/A at PS. Kullu, through PW-11 Constable Naveen Kumar registered FIR Ext.PW6/A and made endorsement Ext.PW6/B on ruqua. He after preparing the case file, handed over the same to PW-11 Constable Naveen Kumar with direction to hand over the same to the Investigating Officer on the spot. On 10.11.2014, at around 1:00 pm, the case property i.e. parcel stated to be containing 722 grams of charas sealed with six seals of seal impressions "T" alongwith NCB-I in triplicate, sample seal and other relevant documents were produced before PW6 Inspector Neel Chand, SHO, P.S. Kullu, H.P., who resealed the parcels with three seals of seal impressions of "H" and after taking sample seal on piece of cloth Ext.PW6/C as well as on NCB-I in triplicate Ext.PW1/C, handed over the case property alongwith sample seals, NCB-I in triplicate and other relevant documents and also the keys of the vehicle to PW1 HC Gajender Pal, MHC, Kullu. On 10.11.2014, PW1 HC Gajender Pal, MHC, Kullu, on receipt of the case property alongwith NCB-I in triplicate and other relevant documents from PW6 Inspector Neel Chand deposited the same in Malkhana at Sr. 265. On 12.11.2014, HC Gajender Pal, MHC, after filling the relevant columns of NCB-I in triplicate Ext.PW1/C sent the sealed parcel containing charas alongwith samples seals of "T&H", NCB-I in ::: Downloaded on - 31/01/2022 23:04:19 :::CIS 6 triplicate and other relevant documents with docket prepared by PW-6 .
Inspector Neel Chand vide RC No. 501 of 2015 Ext.PW2/B through PW2 Constable Sanjay Kumar, for deposit at SFL, Junga. On 1.12.2014, PW3 Constable Mahesh Kumar brought back the case property alongwith result from SFSL, Junga and handed over the same to MHC, who thereafter prepared the special report Ext.PW7/A and handed over the same to Sh.
Nihal Chand, Additional SP Kullu, who after making endorsement Ext.PW7/C handed over the same to his Reader PW7 HC Balbir Sharma, who made an entry in the relevant register. On 12.11.2014, PW10 Gagan Deep Singh brother in law of the accused Gurvinder Singh handed over an affidavit to the police, which was taken into possession vide memo Ext.PW10/B duly signed by Gagan Deep Singh and PW-11 Constable Naveen Kumar. PW-12 HC Deepak Kumar, I.O. recorded the statements of the prosecution witnesses as per their versions and thereafter, on receipt of the report from SFSL and on completion of investigation, presented the case file before PW-6 Inspector Neel Chand, SHO, PS, Kullu, for preparing the challan. After presentation of the challan, presence of the accused was procured and copies of challan were supplied to them in compliance of Section 207 Cr.PC. Court having found prima-facie case against the accused under Sections 20, 25 and 29 of the Act, proceeded to frame ::: Downloaded on - 31/01/2022 23:04:19 :::CIS 7 charges against them under aforesaid provisions of law, to which accused .
pleaded not guilty and claimed trial. Prosecution with a view to prove its case, examined as many as 12 witnesses, whereas despite opportunity, no evidence in defence came to be led on record by the accused, who otherwise in his statement recorded under Section 313 Cr.PC denied case of the prosecution in toto and claimed themselves to be innocent.
3. Learned Special Judge on the basis of evidence led on record by the respective parties, found story of the prosecution to be correct and accordingly, vide judgment dated 22.5.2017, convicted and sentenced them as per description given herein above. In the aforesaid background, accused have approached this Court in the instant appeal, seeking therein their acquittal after setting aside the judgment of conviction and order of sentence recorded by the court below.
4. Having heard learned counsel for the parties and perused material available on record, this Court finds that primarily, challenge to the impugned judgment of conviction recorded by the court below is on the ground that since independent witness namely PW9 Dhale Ram was declared hostile, version, if any, put forth by him, could not be taken into consideration/believed by the learned trial court while concluding guilt, if any, of the appellants-accused. Besides above, it has been also stated in ::: Downloaded on - 31/01/2022 23:04:19 :::CIS 8 the grounds of appeal that there is total non-compliance of Section 57 of .
the Act.
5. Mr. Nikhil Chugh, learned counsel appearing for the appellants-accused, while making this Court peruse evidence led on record by the prosecution vehemently argued that there are lot of contradictions and inconsistencies in the statements of prosecution witnesses and as such, same could not be made basis to hold the accused guilty of having committed offences punishable under Sections 20, 25 and 29 of the Act.
Lastly, Mr. Chugh, contended that since intermediate quantity of charas came to be recovered from the dickey of the scooter, which was not owned by any of the appellants, court below erred in concluding that aforesaid quantity of charas came to be recovered from the conscious possession of the accused and as such, judgment of conviction and order of sentence passed by the court below deserves to be quashed and set-aside.
6. To the contrary, Mr. Kamal Kishore Sharma, learned Deputy Advocate General, while supporting the impugned judgment of conviction recorded by the court below vehemently argued that there is overwhelming evidence adduced on record by the prosecution, suggestive of the fact that on the date of the alleged commission of offence, both the appellants-
accused had specifically gone to Kasol to buy Charas and as such, it ::: Downloaded on - 31/01/2022 23:04:19 :::CIS 9 cannot to be said that they have been falsely implicated. While referring to .
the cross-examination conducted upon PW9 Dhale Ram, learned Deputy Advocate General, strenuously argued that though this witness denied the story of the prosecution, but he was unable to dispute his signatures on memos of recovery and as such, court below rightly held the appellants-
accused guilty of having committed offences punishable under Sections 20- 25 and 29 of the Act.
7. After having heard learned counsel for the parties and perused evidence led on record by the prosecution vis-à-vis judgment of conviction and sentence awarded by the court below, this Court finds it difficult to agree with the contention of Mr. Nikhil Chugh, learned counsel appearing for the accused, that court below has failed to appreciate the evidence in its right perspective, rather this Court finds that court below has taken note of the each and every aspect of the matter and has rightly arrived at a conclusion that on the date of the alleged incident, intermediate quantity of charas came to be recovered from the scooter, being driven by the appellant-Gurvinder Singh.
8. Since it is not in dispute that scooter in question, which was not in the name of the any of the accused, was being driven by the accused and it was apprehended by the police, non-association, if any, of owner ::: Downloaded on - 31/01/2022 23:04:19 :::CIS 10 namely Tilak Raj in the investigation is irrelevant. Though in the case at .
hand, prosecution with a view to prove its case examined as many as 12 witnesses but statements of PW9 Dhale Ram, PW-11 C Naveen Kumar and PW-12 HC Deepak Kumar are relevant to determine the correctness of impugned judgment of conviction passed by the court below.
9. PW9 Dhale Ram was associated as independent witness by PW-
12 HC Deepak Kumar at the time of the recovery. Though aforesaid independent witness Dhale Ram put his signatures on memo Ext.PW9/B, but while deposing before the court below, denied the case of the prosecution and as such, was declared hostile. However, cross-
examination conducted upon this witness suggests that he admitted memo regarding personal search of Police Ext.PW9/A as well as his signatures on the Ext.PW9/B. This witness also admitted that memo regarding identification of cannabis Ext.PW9/C, arrest memos Ext.PW9/D and Ext.PW9/E bear his signatures in red circle "A". He also admitted that sample of seal Ext.PW9/F was taken on piece of cloth and same also bears his signature in red circle "A". In his statement, this witness nowhere stated that he appended signature on the documents on account of pressure being created by the police. This witness also admitted his signatures on the parcels Ext.P1 and P2. However, he was unable to ::: Downloaded on - 31/01/2022 23:04:19 :::CIS 11 render explanation that if nothing had happened in his presence, then why .
did he sign the documents as detailed herein above and as such, court below rightly discarded his statement that no recovery was effected in his presence.
10. PW-11 Constable Naveen Kumar deposed that on 9.11.2014, police party headed by HC Deepak Kumar consisting of him, HC Deepak Kumar and HHC Lal Singh No. 219 was present in front of the Police Post Jari at a distance of ten meters on Bhunter Manikaran road. He deposed that at about 7:00 pm, one vespa scooter bearing No. PB-07-H-7372 came from Manikaran side, being driven by the accused Gurvinder Singh and along with pillion rider Kuldeep Singh. The driver of the scooter opened the dicky, which was underneath the handle in front direction and inside the same, one yellow coloured bundle/gaathari, was kept. He deposed that driver of the scooter was asked to get the aforesaid bundle searched, but he started making excuses. I.O. HC Deepak then asked the name of the driver and pillion rider, who disclosed their names to be Gurvinder Singh and Kuldeep singh. This witness deposed that I.O. PW-12 HC Deepak Kumar asked him to bring some independent witnesses from MPCL gate. He deposed that he went there and brought PW9 Dhale Ram, who at that relevant time, was working as a security guard in MPCL. This witness ::: Downloaded on - 31/01/2022 23:04:19 :::CIS 12 deposed that I.O. associated him and PW9 Dhale Ram as witnesses and .
thereafter, he alongwith him and Dhale Ram gave their personal search to the accused, but nothing incriminating was found in their possession and in this regard, memo Ext.PW9/A was prepared, which bear his signatures in red circle "B". This witness also deposed that accused persons and witness namely Dhale Ram also appended their signatures on the memo.
This witness deposed that thereafter, yellow coloured cloth bundle was taken out by the investigation Officer from the font dickey of the Scooter and was opened on the seat of the scooter. This witness deposed that inside the same, seven chapad of black colour substance were recovered, which was wrapped in transparent polythene wrappers. The Investigating Officer removed the wrappers and on smelling the same, the substance was found to be charas. This witness deposed that IO alongwith recovered substance, Scooter and accused came to Police Post Jari as the same was just at the distance of 10 meters from the spot, where the alleged contraband was weighed on electronic scale, which was found to be 722 grams. The recovered charas was put inside the yellow coloured cloth and the same was put inside a parcel of cloth, which was sealed with six seals of seal "T".
This witness further deposed that wrappers were put inside a separate parcel of cloth, which was also sealed with six seals of seal "T". Impression ::: Downloaded on - 31/01/2022 23:04:19 :::CIS 13 of seal was taken on separate pieces of cloth, out of which one is .
Ext.PW9/F. This witness also deposed that I.O. also filled relevant columns of NCB-I forms in triplicate ExtPW1/C and thereafter, the seal after its use, was handed over to Dhale Ram. He deposed that I.O. prepared ruqua Mark X at 9:30 and handed over the same to him for registration of the case at PS Kullu and he, accordingly, handed over the same to Inspector/SHO Neel Chand at 11:00pm, who after filing of the case handed over the same to him next day at 7:30 am. He deposed that on 12.11.2014, he again remained associated in investigation of this case. Gagan Deep, who is brother in law of the accused Gurvinder Singh handed over one affidavit regarding purchase of Scooter, which was taken into possession through seizure memo Ext.PW-10/B, bearing his signature in red circle "B". Memo regarding handing over of seal to witness Dhale Ram is Ext.PW9/G, which bears his signatures in red circle "B". This witness also deposed that IO prepared memo regarding identification of cannabis Ext.PW9/C, which bears his signature in red circle "B". He has proved two parcels, Ext.P-1 and P-2 and bulk charas in Chapad shape Ext.P4., RC of the scooter Ext.PW11/B. Aforesaid witness was though subjected to lengthy cross-
examination, but perusal of the same nowhere suggests that opposite party ::: Downloaded on - 31/01/2022 23:04:19 :::CIS 14 could extract something contrary to what he stated in his cross-
.
examination.
11. Aforesaid version put forth by PW11 Constable Naveen Kumar came to be fully corroborated by PW-12 HC Deepak Kumar, who almost gave similar facts as was given by PW11 Naveen Kumar during his examination in the trial Court. Cross-examination conducted upon this witness also nowhere suggest that testimony of this witness could be shattered by the defence, rather version putforth by this witness, if read in conjunction, with PW11, clearly suggests that on the alleged date of the incident, both the accused were travelling on scooter bearing registration No. PB-07H-7372 and they were stopped for checking and intermediate quantity of charas was found from the dickey of the scooter in the presence of independent witness PW-9 Dhale Ram. Though PW9 Dhale Ram, denied the case of the prosecution that no recovery of contraband was effected in his presence, but it is ample clear from the statements made by PW11 and PW12 that PW9 Dhale Ram was not only present at the time of recovery, but he also remained throughout with the police till the time, case was registered against the accused.
12. PW-12 HC Deepak Kumar, in his cross-examination, stated that documents were prepared in the room of ASI and it took two hours for ::: Downloaded on - 31/01/2022 23:04:19 :::CIS 15 him to prepare the parcels after scooter was stopped by him on the spot.
.
Though aforesaid officer failed to place on record rapat with regard to departure of the police party from the police post, but it has specifically come in the statement of this witness that he had called PW9 Dhale Ram, who is an employee of MPCL and he was earlier known to him.
13. Having read statements of PW11 and PW12 juxtaposing each other, this court is convinced and satisfied that on the date of the alleged incident, intermediate quantity of charas i.e. 722 grams, came to be recovered from the dickey of scooter bearing registration No. PB-07H-7372 being driven by the accused. Similarly, statements made by PW14 Gajender Kumar, clearly reveals that police party, which had intercepted the scooter in question being driven by the accused before effecting personal search of the accused as well as of the vehicle being driven by them, not only gave their personal search, but also associated independent witness PW9 Dhale Ram. It is quite apparent from the statement made by the aforesaid witness that PW12 HC Deepak Kumar, after having effected recovery of the contraband from the dickey of the scooter in question drawn samples and sealed them with proper seal. It is also clear from the evidence available on record that intact seals were sent to SFSL for chemical analysis. Similarly, there is sufficient material adduced on ::: Downloaded on - 31/01/2022 23:04:19 :::CIS 16 record by the prosecution that remaining bulk of charas was kept in a .
sealed parcel and its seal remained intact throughout. The cross-
examination conducted upon this witness, nowhere suggests that defence was able to prove that proper samples were not drawn after recovery and same were not sent in sealed parcel.
14. Another witness namely PW4 Constable Sanjay Kumar, deposed that he brought original DD 17 dated 9.11.2014 Ext.PW4/A. PW7 HC Balbir Sharma, PW8 Kirpa Ram, PW10 Gagan Deep are witnesses of record and as such, statements made by them need not to be taken note at this stage.
15. PW6 Inspector Neel Chand, SHO, PS Kullu, deposed that on 9.11.2014, one ruqua scribed by the HC Deepak Kumar, Police Post Jari, was received in PS Kullu through PW-11 Constable Naveen Kumar for registration of case and in pursuance to which, he registered FIR Ext.PW6/A, which bears his signature in red circle as Ext.PW6/B. He deposed that after preparing the case file, the same was handed over to aforesaid constable PW11 Naveen Kumar with direction to hand over the same to the investigator PW12 HC Deepak Kumar on the spot. This witness deposed that on 10.11.2014, at about 1:00pm, HC Depak Kumar handed over the one sealed parcel, containing 722 grams charas, which ::: Downloaded on - 31/01/2022 23:04:19 :::CIS 17 was duly sealed with six seals of "T" alongwith sample of seal and NCB-I .
form in triplicate and other relevant documents for the purpose of resealing and he resealed the parcel with three seal of 'H' and samples of seal were drawn on separate piece of cloth Ext.PW6/C. He deposed that columns No. 9 to 11 of the NCB-I form i.e. Ext.PW1/C were also filled by him and thereafter, aforesaid parcel, sample of seals, NCB-I form in triplicate, seizure memo were handed over to the MHC Gajender Pal with direction to keep the same in the Malkhana and to send the same to SFSL Junga. He further deposed that on 12.11.2014, he prepared the docket Ext.PW1/D and on the completion of investigation, the case file was handed over to him by HC Deepak for preparing the challan and after agreeing with the investigation he prepared the challan.
16. If the statement of this witness is examined vis-à-vis statement of other material prosecution witnesses i.e. PW11 and PW12, this Court sees no reason to agree with Mr. Nikhil Chugh, learned counsel for the petitioner that prosecution has not been able to prove its case beyond reasonable doubt, rather this court finds from the evidence adduced on record by the prosecution that prosecution successfully proved on record that on the date of the alleged incident, both the accused were found carrying 722 grams of charas in the dickey of the scooter bearing ::: Downloaded on - 31/01/2022 23:04:19 :::CIS 18 registration No. PB-07H-7372. Similarly, evidence led on record by the .
prosecution clearly reveals that police after having completion of necessary codal formalities, sent the samples intact to SFSL Junga for chemical analysis. Though independent witness PW9 associated at the time of recovery not supported the case of the prosecution, but he was unable to dispute his signatures on the recovery memo, seizure memo and arrest memos and as such, court below right discarded his version that no recovery was effected in his presence. Though Mr. Chugh argued that there is no compliance of Section 57 of the Act, but this Court finds from the evidence led on record by the prosecution that PW-12 HC Deepak Kumar I.O. immediately after recovery of the contraband from the scooter in question being driven by the accused associated the independent witness and made full report of particular of arrest and seizure memo to PW6 Inspector Neel Chand, as is evident from statement of PW6 Neel Chand, SHO PS Kullu, who categorically deposed that on 9.11.2014, one ruqua scribed by HC Deepak Kumar was received in the Police Station, Kullu through Constable Naveen Kumar for registration of case and pursuant to which, he registered FIR Ext.PW6/A. Since PW-12 HC Deepak Kumar after recovery and arrest of the accused sent ruqua to his immediate higher ::: Downloaded on - 31/01/2022 23:04:19 :::CIS 19 officer i.e. SHO Neel Chand, PS. Kullu, it cannot be said that there is no .
compliance of Section 57 of the Act.
17. Having scanned entire evidence adduced on record by the prosecution, this Court finds no illegality and infirmity in the impugned judgment of conviction and order of sentence recorded by the court below, and as such, same is upheld. However, taking note of the fact that appellants-accused are first offenders coupled with the fact that they have already undergone imprisonment for more than four years, this Court deems it fit to reduce the period of sentence from seven years to the period they have already undergone.
18. Consequently, the appeal is partly allowed and modified to the extent that the accused is sentenced to undergo imprisonment for the period they have already undergone subject to their depositing fine amount, which is enhanced by this Court from 70,000/- to 150,000/-, within a period of one week. The accused be set free forthwith, if not required in any other case. Release warrants be prepared accordingly. However, it is clarified that if fine amount as quantified by this Court is not deposited within a period of two weeks from the release of the appellants-accused from the jail, they would render themselves liable to serve the entire sentence of seven years awarded by the court below. State is directed to ::: Downloaded on - 31/01/2022 23:04:19 :::CIS 20 ensure the aforesaid compliance. Appeal is disposed of in the aforesaid .
terms.
14th September, 2021 (Sandeep Sharma),
(manjit) Judge
r to
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