Himachal Pradesh High Court
Sanjay Tomar vs State Of H.P on 22 May, 2024
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
N THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 101 of 2020 .
Reserved on: 25.04.2024
Date of Decision: 22nd May, 2024
Sanjay Tomar ...Appellant.
Versus
State of H.P. ...Respondent
Coram
Hon'ble Mr Justice Vivek Singh Thakur, Judge. Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes For the Appellant : Mr. Hemant Kumar, Advocate. For the Respondent : Mr. Varun Chandel, Additional Advocate General.
Rakesh Kainthla, Judge The present appeal is directed against the judgment dated 31.12.2019, passed by learned Special Judge, Chamba, Division Chamba, H.P, vide which the appellant (accused before the learned Trial Court) was convicted of the commission of an offence punishable under Section 21 of the Narcotic Drugs and Psychotropic Substances Act (in short 'NDPS Act') and order dated 14.01.2020, vide which he was sentenced to undergo rigorous imprisonment for 10 years and pay a fine of ₹1,00,000/- and in 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 22/05/2024 20:33:35 :::CIS 2default of payment of fine to further undergo simple imprisonment for one year for the commission of the aforesaid offence. (Parties shall hereinafter be referred to in the same .
manner as they were arrayed before the learned Trial Court for convenience).
2. Briefly stated, the facts giving rise to the present appeal are that the police presented a challan against the accused before the learned Trial Court for the commission of an offence punishable under Section 21 read with Section 8A of the NDPS Act.
It was asserted that HC-Virender Singh (PW11) was present in the office of Special Investigating Unit (SIU) at around 4:00 pm on 05.03.2018, when he received a secret information that the accused had taken a room on rent at Udaipur from Sourav Boss (PW1). The accused had brought injections and capsules of psychotropic substance and he was selling them to the school and college going students. The information was reduced to writing.
An entry (Ext. PW3/A) was recorded in the police station. A copy of the entry was sent to the Superintendent of Police, Chamba through Constable-Sanjay Kumar (PW7). HC-Virender Singh also apprised the Superintendent of Police, Chamba about the information telephonically, who directed him to associate some ::: Downloaded on - 22/05/2024 20:33:35 :::CIS 3 lady constable from Sultanpur Police Post. HC-Virender Singh (PW11), HC-Sanjay Kumar (PW5), HHC-Mohammad Aslam (PW6), HHC-Manohar Lal, Constable-Sunil Kumar, Constable-
.
Sanjay Kumar, Constable-Upinder Chona and Constable-Dinesh Kumar went to Udaipur in an official vehicle bearing Registration No. HP-73-8754 and a private vehicle bearing Registration No.HP-73-3025 along with an I.O. bag, weighing scale and official camera. HC-Virender Singh informed the Police Post, Sultanpur to send a lady constable as per the directions of the Superintendent of Police. Constable-Sanjeepa Devi met the police party at Udaipur. She was also associated with the police party. The police party went to the house of Sourav Boss, who was found present in his home. They went to the room of the accused where he was present. The search of the room of the accused was conducted in the presence of Sourav Boss. One carton containing 85 packets each containing 10 injections of Pentalab Lactate Injections and two carry bags containing 124 packets each containing 24 capsules of Spasmo Proxyvon Plus Capsules were recovered during the search. The accused could not produce any permit for keeping the capsules and the injections. The injections and capsules were put in the carton and carry bags in the same manner, in which they ::: Downloaded on - 22/05/2024 20:33:35 :::CIS 4 were recovered. ₹ 34,000/- were also found kept beneath the carry bag. These were put in a cloth parcel and the parcel was sealed with 10 seals of seal 'CF'. The seal impression (Ext. PW1/A) was .
taken on a separate piece of cloth. NCB-I form (Ext. PW11/A) was filled in triplicate. A seal impression was put on the form. The seal was handed over to Sourav Boss after the use. The cloth parcel, NCB-I form, sample seal and currency notes were seized vide memo (Ext. PW1/B). HC-Sanjay Kumar took the photographs of the proceedings (Ext. PW5/A and Ext. PW5/B). HC-Virender Singh (PW11) prepared the rukka (Ext. PW6/A) and handed it over to HC-
Mohammad Aslam (PW6) with a direction to carry it to the police station. A copy was also handed over to him for delivery to the Superintendent of Police, Chamba. FIR (Ext. PW16/A) was registered in the Police Station. S.I. Subhash Kumar (PW19) conducted the further investigation. He reached the spot. HC-
Virender Singh handed over the articles and the documents prepared by him to S.I. Subhash Kumar vide memo (Ext. PW1/C).
S.I.-Subhash Kumar prepared the site plan (Ext. PW19/A) and recorded the statements of the witnesses as per their version. He arrested the accused vide memo (Ext. PW1/D). The case property was produced before A.S.I.-Govind Pal (PW16), who resealed the ::: Downloaded on - 22/05/2024 20:33:35 :::CIS 5 same with five impressions of seal 'SA'. Seal impression (Ext.
PW10/A) was taken on a separate piece of cloth and NCB-I form.
The seal was handed over to Constable-Tilkeshwar after the use.
.
The case property was deposited with HC-Rajput Pardeep (PW8), who deposited it in the Malkhana and made an entry at Serial No.741 (Ext. PW8/A). He handed over the case property to SI-
Subhash Kumar (PW19) to get the inventory certified. Subhash Kumar filed an application (Ext. Pw19/C) before the learned CJM, Chamba for getting the inventory certified. Learned CJM, Chamba passed an order (Ext. PW19/D) and issued the certificate (Ext.
PW19/F). He also filed an application (Ext. PW13/A) before the learned Additional Sessions Judge, Chamba for separating the capsules and injections. Learned Additional Sessions Judge, Chamba passed an order (Ext. PW13/B) and separated the capsules and the injections. These were put in separate parcels and each parcel was sealed with three seal impressions of seal 'ASJ' Chamba. The seal impression (Ext. PW19/G) was taken on a separate piece of cloth. The cloth parcel containing Spasmo Proxyvon capsules was handed over to Drug Inspector Narinder Kumar (PW18) for further action in the matter. The remaining parcel was deposited with HC-Rajput Pardeep (PW8), who ::: Downloaded on - 22/05/2024 20:33:35 :::CIS 6 deposited it in the Malkhana. He handed over the case property to Constable-Surinder Singh (PW9) on 07.03.2018 with a direction to carry it to SFSL, Junga vide RC No.63/2018 dated 07.03.2018 (Ext.
.
PW8/B). ASI-Subhash Kumar handed over the special report (Ext.
PW2/A) to HHC-Latif Mohammad with a direction to carry it to the Superintendent of Police. He handed it over to Dy.S.P. on the same day. Dy.S.P. made an endorsement on the special report and handed it over to his Reader HC-Sanjeev Kumar (PW2), who made an entry in the special report register at serial No.60 (Ext. PW2/B) and retained the same on record. The result of analysis (Ext. 'PX') was issued, in which it was shown that exhibit stated as Pentalab Lactate Injection was a sample of Pentazocine Lactate Solution in glass ampoules containing 31.77 mg per ml Pentazocine Lactate.
The statements of the remaining witnesses were recorded as per their version and after the completion of the investigation, the challan was prepared and presented before the Court.
3. Learned Special Judge-II, Chamba (learned Trial Court) charged the accused with the commission of an offence punishable under Section 21 read with Section 8A of the NDPS Act.
He pleaded not guilty and claimed to be tried.
::: Downloaded on - 22/05/2024 20:33:35 :::CIS 74. The prosecution examined 19 witnesses to prove its case. Sourav Boss (PW1) is the landlord of the accused and an independent witness to recovery. HC-Sanjeev Kumar (PW2) was .
posted as a Reader to the Additional Superintendent of Police, Chamba to whom the special report was handed over. HHC-
Shakuntla (PW3) proved the entries in the daily diary. ASI-
Subhash Chand (PW4) was posted as a Reader to the Superintendent of Police, Chamba to whom the special report was handed over. HC-Sanjay Kumar (PW5) and HHC Mohammad Aslam (PW6) are the witnesses to recovery. Constable-Sanjay (PW7) carried the information to the Superintendent of Police, Chamba. HC-Rajput Pardeep (PW8) was working as a Head Constable with whom the case property was deposited. Constable-
Surinder Singh (PW9) carried the case property to FSL Junga.
Constable-Tilkeshwar (PW10) is the witness to the re-sealing.
HC-Virender Singh (PW11) effected the recovery. Sher Khan (PW12) developed the photographs. Vijay Bharti (PW13) proved the order passed by learned Additional Sessions Judge, Chamba.
Prashant Thakur (PW14) prepared the challan. HC-Latif Mohammad (PW15) carried the special report to the Superintendent of Police, Chamba. ASI-Govind Pal (PW16) ::: Downloaded on - 22/05/2024 20:33:35 :::CIS 8 conducted further investigation. Constable-Sanjeev Kumar (PW17) brought the case property and the result of analysis from SFSL, Junga. Narinder Thakur (PW18) was posted as a Drug .
Inspector. SI Subhash Kumar (PW19) conducted the investigation.
5. The accused in his statement recorded under Section 313 of Cr.P.C. denied the prosecution case in its entirety. He stated that he was falsely implicated. He did not lead any defence evidence.
6. to The learned Trial Court held that the testimonies of the official witnesses were duly corroborated by Sourav Boss (PW1).
The integrity of the case property was duly established. Mere failure to associate two independent witnesses was not fatal. The substance of the information was sent to the Superior Officer and there was compliance with Section 42 of the NDPS Act. Minor contradictions in the testimonies were not sufficient to discard the prosecution case because such contradictions could come with time. The seals on the case property were found intact in the laboratory and the prosecution version that the case property remained intact had to be accepted as correct. The capsules were found to contain Pentazocine Lactate mentioned in Serial No.175 of the Notification issued by the Central Government. The total ::: Downloaded on - 22/05/2024 20:33:35 :::CIS 9 quantity of 851.87 grams of Pentazocine Lactate was found in possession of the accused, which is a commercial quantity; hence, the accused was convicted of the commission of an offence .
punishable under Section 21 of NDPS Act and sentenced as aforesaid.
7. Being aggrieved from the judgment and order passed by the learned Trial Court, the accused has filed the present appeal asserting that he does not have any connection with the premises or the recovery. Learned Trial Court erred in holding that contradictions were minor. There was non-compliance with Section 42 of the NDPS Act, which vitiated the recovery; hence, it was prayed that the present appeal be allowed and the judgment and order passed by the learned Trial Court be set aside.
8. We have heard Mr. Hemant Kumar, learned counsel for the appellant/accused and Mr. Varun Chandel, learned Additional Advocate General, for the respondent/State.
9. Mr Hemant Kumar, learned counsel for the appellant/accused submitted that the prosecution had not complied with the requirement of Section 42 of the NDPS Act, which is fatal. There are major contradictions in the testimonies of the official witnesses and the learned Trial Court erred in relying ::: Downloaded on - 22/05/2024 20:33:35 :::CIS 10 upon the testimonies. The prosecution had not associated two independent witnesses despite the prior information; hence, he prayed that the present appeal be allowed and judgment and order .
passed by the learned Trial Court be set aside.
10. Mr. Varun Chandel, learned Additional Advocate General for the respondent/State, supported the judgment and order passed by the learned Trial Court and submitted that no interference is required with the same. He submitted that the information was recorded in the daily diary and a copy of the daily diary was sent to the Sub-Divisional Police Officer (SDPO); thus, there was sufficient compliance with Section 42 of the NDPS Act.
The contradictions in the testimonies are minor, which can occur with time and are not sufficient to discard the prosecution case.
Hence, he prayed that the present appeal be dismissed.
11. We have given considerable thought to the submissions at the bar and have gone through the records carefully.
12. HC-Virender Singh (PW11) stated that he was present in the Special Investigating Unit, Chamba at about 4:00 pm when he received a secret information that the accused who was residing in a rented accommodation of Sourav Boss at Dhampu ::: Downloaded on - 22/05/2024 20:33:35 :::CIS 11 (Udaipur) had brought a large quantity of psychotropic substances for sale to the school and college going students. The information was found to be genuine and it was entered in rapat No.5 (Ext.
.
PW3/A). It was sent to the Superintendent of Police, Chamba as required under Section 42 of the NDPS Act. His testimony is corroborated by the statement of lady constable HHC-Shakuntala (PW3) who stated that she entered the departure report in the daily diary register of SIU, Chamba and prepared a copy of rapat No.5 (Ext. PW3/A). Entry No.5 (Ext. PW3/A) records the information that the accused had brought the injection, which he was selling to the school and college going students. The information was sent to the Superintendent of Police, Chamba through Constable-Sanjay Kumar No.327.
13. Constable-Sanjay Kumar No.327 (PW7) stated that on 05.03.2018, he was present at SIU, Chamba when a secret information was received by HC-Virender that Sanjay Tomar resident of village Udaipur-Dhampu dealt in the business of selling injections and capsules to the students. Entry No.5 (Ext.
PW3/A) was registered, which was handed over to him with a direction to deliver it to the Superintendent of Police, Chamba. He handed it over to the Superintendent of Police, Chamba at 4:15 pm. ::: Downloaded on - 22/05/2024 20:33:35 :::CIS 12 This witness was not cross-examined at all, which means that his testimony has not been challenged by the defence.
14. ASI-Subhash Chand (PW4) was posted as a Reader to .
the Superintendent of Police, Chamba. He stated that HC-Virender Singh sent the information on 05.03.2018 at 4:20 pm under Section 42 (2) of the NDPS Act, vide Rapat No.5 dated 05.03.2018 to Superintendent of Police, Chamba, who made the endorsement over the report and handed it over to him. He entered the same at Serial No.3504 of the receipt register (Ext. PW4/B). He duly identified the handwriting of the Superintendent of Police. He admitted in his cross-examination that the information and rukka were not written before him. He stated that he remained on duty for 24 hours.
15. His testimony that the information was handed over to him by the Superintendent of Police, Chamba was not specifically challenged in the cross-examination; hence, the same is to be accepted as correct.
16. The testimonies of these witnesses are also corroborated by the entry made in the handwriting of the Superintendent of Police duly identified by this witness, which reads that the information was seen by the Superintendent of ::: Downloaded on - 22/05/2024 20:33:35 :::CIS 13 Police on 05.03.2018 at 4:20 pm in the office. The copy of the abstract (Ext. PW4/B) also mentions the information at Sr. No.3504, hence, these documents proved that HC-Virender Singh .
had reduced the information into writing by recording it in the daily diary and this daily diary was sent immediately to the Superintendent of Police, Chamba. Therefore, the submission that the police had not complied with the requirements of Section 42 of the NDPS Act is not acceptable.
17. The entry (Ext. PW3/A) reads that the time spent in obtaining the search warrant could be utilized for destroying the case property and the Superintendent of Police was apprised of the information. The entry (Ex. PW3/A) contains the information, grounds of belief and the reasons why the warrant could not be obtained by stating that the delay in obtaining the warrant could have led to the destruction of the case property.
18. HC-Virender Kumar (PW11) also stated in his examination-in-chief that there were chances of destruction of case property in case of obtaining the search warrant, hence, he informed the Superintendent of Police, Chamba. He denied in his cross-examination that the SIU Office is located at a distance of 5 minutes' walk from the Court complex. He stated that the distance ::: Downloaded on - 22/05/2024 20:33:35 :::CIS 14 between the Court complex and the SIU office is about 2 kilometres. He admitted that one has to take the search warrant before searching the house of any person but volunteered to say .
that there were chances of destruction of the case property. The statement of this witness that obtaining the search warrant would have led to the delay is to be accepted as correct. The police would have taken some time to prepare the application and thereafter, file it before the Court. The Court would have also taken some time to pass the order and issue the search warrant. The time spent in filing the application and issuance of the warrant could have been utilized to destroy the case property, which was in the form of capsules and ampoules. Hence, the statement of HC-Virender Kumar, the Investigating Officer, that he had sufficient reasons for not obtaining the search warrant has to be accepted as correct.
19. Sourav Boss (PW1) is the owner of the premises, which was rented to the accused. He stated that his house is situated at Dhampu, Udaipur. He rented out one room to the accused on the ground floor. HC-Virender Singh and other police officials came to his residence on 5.3.2018 and disclosed that the accused dealt in the business of sale of psychotropic substances i.e. medicine etc. to the School and College going students. The police told him that ::: Downloaded on - 22/05/2024 20:33:35 :::CIS 15 they intended to search the room of the accused and associated him as a witness with other police officials. One carton containing Pentalab Lactate Injections and two carry bags containing Spasmo .
Proxyvon Capsules were recovered during the search. Injections were found to be 85 strips containing 10 injections each and a total of 815 (850?) injections. 24 capsules were found in each strip.
2976 capsules of Spasmo Proxyvon Capsules were found. The substance was kept inside the carry bag and the carton and these were put in a parcel. The parcel was sealed with 10 seals. The police also recovered ₹34,000/-. The police obtained the sample seal and handed over the seal to him. The police filled NCB-I form.
850 injections, 2970 capsules and ₹ 34,000/- were taken in possession vide memo (Ext. PW1/B). The memo was also signed by HC-Sanjay, HHC-Mohammad Aslam and the accused. The Investigating Officer also sent one police constable to the police station. He duly identified the currency notes, the injections and the capsules. He stated in his cross-examination that the house is in the name of his mother. He and his mother were renting the house to tenants. 19-20 tenants occupied the house at that time.
The other tenants were present on the spot. No rent agreement was executed between his mother and the accused. He had handed ::: Downloaded on - 22/05/2024 20:33:35 :::CIS 16 over the title documents to the police and the police had also recorded his statement to this effect. He was contradicted with his previous statement, wherein it was not so recorded. He was .
residing on the ground floor. The accused was also residing on the ground floor. The police reached his house at about 5:00-5:30 pm. He denied that it was dark at that time. The police associated him first and searched the room of the accused thereafter. He was not aware whether any permission or search warrant was shown to him or not. The police remained in the residence for 5-10 minutes before searching the room of the accused. He also went inside the room of the accused with the police. The accused was alone and he was standing when he (this witness) and the police entered the room. The injections were lying inside the carton kept in the open wooden almirah. The capsules were kept inside the carry bag. He did not remember the colour of the carry bags. The injections were 850 inside 85 strips. The Police did not take any injections out of those strips. The parcel was brought by the police and the seal was put in his presence. He remained with the police till 10-10:30 pm. Aadhar Card and PAN Card were recovered from the wallet of the accused but no money was found inside the wallet. He denied that ::: Downloaded on - 22/05/2024 20:33:35 :::CIS 17 he was deposing falsely and no recovery was effected from the accused.
20. This witness stated the number of capsules as 815 in .
his examination-in-chief but subsequently clarified in his examination-in-chief, as well as in his cross-examination that the number of capsules was 850. 815 and 850 are phonetically similar and there can be an error in recording the number due to the phonetic similarity. Since, this witness specifically stated at two places that the number of recovered capsules was 850, therefore, 815 mentioned by him initially will not be sufficient to discard his testimony.
21. This witness was also confronted with his previous statement, wherein he had not mentioned that he had handed over title documents to the police and carton box was kept in an open wooden almirah. However, the previous statement has not been properly proved. Proviso to Section 162 of Cr.P.C. permits the use of the statement recorded by the police to contradict a witness.
It reads:
Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permis- sion of the Court, by the prosecution, to contradict such ::: Downloaded on - 22/05/2024 20:33:35 :::CIS 18 witness in the manner provided by section 145 of the Indian Evidence Act, 1872 (1 of 1872) and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-ex-
.
amination.
22. Thus, it is apparent that the defence can use the statement to contradict a witness if the statement is proved. It was laid down by the Bombay High Court about a century ago in Emperor vs. Vithu Balu Kharat (1924) 26 Bom. L.R. 965 that the observed:
r to previous statement has to be proved before it can be used. It was "The words "if duly proved" in my opinion, clearly show that the record of the statement cannot be admitted in evi- dence straightaway but that the officer before whom the statement was made should ordinarily be examined as to any alleged statement or omitted statement that is relied upon by the accused for the purpose of contradicting the witness;
and the provisions of Section 67 of the Indian Evidence Act apply to this case, as well as to any other similar ease. Of course, I do not mean to say that, if the particular police offi- cer who recorded the statement is not available, other means of proving the statement may not be availed of, e.g., evidence that the statement is in the handwriting of that particular officer."
23. It was laid down by Hon'ble Supreme Court in Muthu Naicker and Others etc Versus State of T.N. (1978) 4 SCC 385, that if the witness affirms the previous statement, no proof is necessary, but if the witness denies or says that he did not remember the ::: Downloaded on - 22/05/2024 20:33:35 :::CIS 19 previous statement, the investigating officer should be asked about the same. It was observed: -
"52. This is the most objectionable manner of using the po-
.
lice statement and we must record our emphatic disapproval of the same. The question should have been framed in a manner to point out that from amongst those accused men-
tioned in examination-in-chief there were some whose names were not mentioned in the police statement and if the witness affirms this no further proof is necessary and if the witness denies or says that she does not remember, the investigation officer should have been questioned about it."
24. The Gauhati High Court held in Md. Badaruddin Ahmed versus State of Assam, 1989 Cri. L.J. 1876 that if the witness denies having made the statement, the portion marked by the defence should be put to the investigating officer and his version should be elicited regarding the same. It was observed: -
"15. The learned defence counsel has drawn our attention to the above statement of the Investigating Officer and sub- mits that P.W. 4 never made his above statement before the police and that the same being his improved version cannot be relied upon. With the utmost respect to the learned de- fence counsel, we are unable to accept his above contention.
Because, unless the particular matter or point in the previ- ous statement sought to be contradicted is placed before the witness for an explanation, the previous statement cannot be used in evidence. In other words, drawing the attention of the witness to his previous statement sought to be con- tradicted and giving all opportunities to him for explana- tion are compulsory. If any authority is to be cited on this point we may conveniently refer to the case of Pangi Jogi Naik v. State reported in AIR 1965 Orissa 205 : (1965 (2) Cri LJ
661). Further in the case of Tahsildar Singh v. State of U.P., reported in AIR 1959 SC 1012 : (1959 Cri LJ 1231) it was also ::: Downloaded on - 22/05/2024 20:33:35 :::CIS 20 held that the statement not reduced to writing cannot be contradicted and, therefore, in order to show that the state-
ment sought. One contradiction was recorded by the police, it should be marked and exhibited. However, in the case at hand, there is nothing on the record to show that the previ-
.
ous statement of the witness was placed before him and that the witness was given the chance to explain. Again, his previous statement was not marked and exhibited. There- fore, his previous statement before the police cannot be used. Hence, his evidence that when he turned back he saw the accused Badaruddin lowering the gun from the chest is to be taken as his correct version.
16. The learned defence counsel has attempted to persuade us not to rely on the evidence of this witness on the ground that his evidence before the trial Court is contradicted by his previous statement made before the police. However, in view of the decisions made in the said cases we have been persuaded irresistibly to hold that the correct procedure to be followed which would be in conformity with S.145 of the Evidence Act to contradict the evidence given by the prose- cution witness at the trial with a statement made by him before the police during the investigation will be to draw the attention of the witness to that part of the contradic- tory statement which he made before the police and ques-
tioned him whether he did in fact made that statement. If the witness admits having made the particular statement to the police, that admission will go into evidence and will be recorded as part of the evidence of the witness and can be relied on by the accused as establishing the contradiction.
However, if, on the other hand, the witness denies to have made such a statement before the police, the particular portions of the statement recorded should be provisionally marked for identification as B-1 to B-1, B-2 to B-2 etc., (any identification mark) and when the investigating offi- cer who had actually recorded the statements in question comes into the witness box, he should be questioned as to whether these particular statements had been made to him during the investigation by the particular witness, and ob- viously, after refreshing his memory from the case diary the investigating officer would make his answer in the af-
::: Downloaded on - 22/05/2024 20:33:35 :::CIS 21firmative. The answer of the Investigating Officer would prove the statements B-1 to B-1, B-2 to B-2 which are then exhibited as Ext. D. 1, Ext. D. 2 etc. (exhibition mark) in the case and will go into evidence, and may, thereafter, be re- lied on by the accused as contradictions. In the case in .
hand, as was discussed above, the above procedure was not followed while cross-examining the witness to his previous statements, and, therefore, we have no alternative but to accept the statement given by this witness before the trial Court that he saw the accused Badaruddin lowering the fun from his chest to be his correct version.
25. Andhra Pradesh High Court held in Shaik Subhani alias Bombay Subhani and another Versus State of Andhra Pradesh, 2000 Cri. L.J. 321 that putting a suggestion to the witness and the witness denying the same does not amount to putting the contradiction to the witness. The attention of the witness has to be drawn to the previous statement and if he denies the same, the same is to be got proved by the investigating officer. It was observed: -
"24. As far as contradictions put by the defence is con- cerned, we would like to say that the defence counsel did not put the contradictions in the manner in which they ought to have been put. By putting suggestions to the wit- ness and the witness denying the same will not amount to putting contradiction to the witness. The contradiction has to be put to the witness as contemplated under S. 145 of the Evidence Act. If a contradiction is put to the witness and it is denied by him, then his attention has to be drawn to the statement made by a such witness before the police or any other previous statement and he must be given a reason- able opportunity to explain as to why such contradiction appears and he may give any answer if the statement made ::: Downloaded on - 22/05/2024 20:33:35 :::CIS 22 by him is shown to him and if he confronted with such a statement and thereafter the said contradiction must be proved through the investigation officer. Then only it amounts to putting the contradiction to the witness and getting it proved through the investigation officer.
.
26. The Calcutta High Court took a similar view in Anjan Ganguly & Ors. Versus State of West Bengal, 2013 (3) DMC 760 and held:-
"22. It was held in State of Karnataka v. Bhaskar Kushali Kothakar & Ors., (2004) 7 SCC 487 that if any statement of the witness is contrary to the previous statement recorded under Section 161, Cr.P.C. or suffers from the omission of certain material particulars, then the previous statement can be proved by examining the Investigating Officer who had recorded the same. Thus, there is no doubt that for proving the previous statement Investigating Officer ought to be examined, and the statement of the witness recorded by him, can only be proved by him and he has to depose to the extent that he had correctly recorded the statement, without adding or omitting, as to what was stated by the witness.
xxxxx
24. Proviso to Section 162(1), Cr.P.C. states in clear terms that the statement of the witness ought to be duly proved. The words if duly proved, cast a duty upon the accused who wants to highlight the contradictions by confronting the witness to prove the previous statement of a witness through the police officer who has recorded the same in an ordinary way. If the witness in the cross-examination admits contradictions then there is no need to prove the statement. But if the witness denies a contradiction and the police officer who had recorded the statement is called by the prosecution, the previous statement of the witness on this point may be proved by the police officer. In case the prosecution fails to call the police officer in a given situation Court can call this witness or the accused can call ::: Downloaded on - 22/05/2024 20:33:35 :::CIS 23 the police officer to give evidence in defence. There is no doubt that unless the statement as per proviso to sub- section (1) of Section 162, Cr.P.C. is duly proved, a contradiction in terms of Section 145 of the Indian Evidence Act cannot be taken into consideration by the .
Court.
25. To elaborate on this further, it will be necessary to reproduce Section 145 of the Indian Evidence Act.
"S. 145. A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him."
26. Therefore, it is appropriate that before the previous statement or statement under Section, 161, Cr.P.C. is proved, the attention of the witness must be drawn to the portion in the statement recorded by the Investigating Officer to bring to light the contradiction, a process called confrontation.
27. Let us first understand what is proper procedure. A witness may have stated in the statement under Section 161, Cr.P.C. that 'X murdered Y'. In the Court witness stated, 'Z murdered Y'. This is a contradiction. Defence Counsel or Court and even prosecution if the witness is declared hostile having resiled from the previous statement, is to be confronted to bring contradiction on record. The attention of the witness must be drawn to the previous statement or statement under Section 161, Cr. P.C., where it was stated that 'X murdered Y'. Since Section 145 of the Indian Evidence Act uses the word being proved, therefore, in the course of the examination of the witness, previous statement or statement under Section 161, Cr.P.C. will not be exhibited but shall be assigned a mark, and the portion contradicted will be specified. The trial Court in the event of contradiction has to record it as under.
::: Downloaded on - 22/05/2024 20:33:35 :::CIS 2428. Attention of the witness has been drawn to portions A to A of the statement marked as 1, and confronted with the portion where it is recorded that 'X murdered Y'. In this manner by way of confrontation contradiction is brought on record. Later, when the Investigating Officer is .
examined, the prosecution or defence may prove the statement, after the Investigating Officer testifies that the statement assigned mark was correctly recorded by him at that stage statement will be exhibited by the Court. Then contradiction will be proved by the Investigating Officer by stating that the witness had informed or told him that 'X murdered Y' and he had correctly recorded this fact.
29. Now a reference to the explanation to Section 162, Cr.P.C. which says that an omission to state a fact or circumstance may amount to contradiction. Say for instance if a witness omits to state in Court that 'X murdered Y', what he had stated in a statement under Section 161, Cr.P.C. will be a material contradiction, for the Public Prosecutor, as the witness has resiled from the previous statement, or if 'W' has been sent for trial for a charge of murder, omission to state 'X murdered Y' will be a material omission, and amount to contradiction so far defence of 'W' is concerned. At that stage also the attention of the witness will be drawn to a significant portion of the statement recorded under Section 161, Cr.P.C. which the witness had omitted to state and note shall be given that attention of the witness was drawn to the portion A to A wherein it is recorded that 'X murdered Y'. In this way, the omission is brought on record. The rest of the procedure stated earlier qua confrontation shall be followed to prove the statement of the witness and the fact stated by the witness.
30. Therefore, to prove the statement for the purpose of contradiction it is necessary that the contradiction or omission must be brought to the notice of the witness. His or her attention must be drawn to the portion of the previ- ous statement (in the present case statement under Sec- tion 161, Cr.P.C.) ::: Downloaded on - 22/05/2024 20:33:35 :::CIS 25
27. In the present case, the witness had mentioned these facts for the first time in his cross-examination and not in his .
examination-in-chief. The statement under Section 161 of Cr.PC is not detailed and is meant to be brief. It does not contain all the details. This position was laid down in Mata Din versus State AIR 1979 S.C 1234 wherein it was observed:
"The Sessions Judge did not realise that the statements given by the witnesses before the Police are meant to be brief statements and could not take the place of evidence in the Court. Where the omissions are vital, they merit consideration, but mere small omissions will not justify a finding by a court that the witnesses concerned are self- contained liars."
28. Similar is the judgment in Esher Singh Versus State 2004 (11) SCC 585 wherein it was held:
"Though it is true as contended by learned counsel for the accused-appellant Esher Singh that some statements were made for the first time in Court and not during the investigation, it has to be seen as to what extent they diluted the testimony of Balbeer Singh and Dayal Singh (P.Ws. 16 and 32) used to bring home the accusations. A mere elaboration cannot be termed as a discrepancy. When the basic features are stated, unless the elaboration is of such nature that it creates a different contour or colour of the evidence, the same cannot be said to have changed the complexion of the case."
29. This position was reiterated in Shamim vs. State 2018 (10) SCC 509 wherein it was held:
::: Downloaded on - 22/05/2024 20:33:35 :::CIS 26"12. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole inspires confidence. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view .
the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, a hypertechnical approach by taking sentences torn out of context here or there from the evidence, and attaching importance to some technical error without going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. Minor omissions in police statements are never considered to be fatal. The statements given by the witnesses before the police are meant to be brief statements and could not take the place of evidence in the court. Small/Trivial omissions would not justify a finding by the court that the witnesses concerned are liars. The prosecution evidence may suffer from inconsistencies here and discrepancies there, but that is a shortcoming from which no criminal case is free. The main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of incongruities obtained in the evidence. In the latter, however, no such benefit may be available to it."
30. Similar is the judgment in Kalabhai Hamirbhai Kachhot vs State of Gujarat AIR 2021 SC 2327 wherein it was observed:
30. In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal er-
rors of observation, namely, errors of memory due to the lapse of time or due to mental dispositions such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about ::: Downloaded on - 22/05/2024 20:33:35 :::CIS 27 the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, mi- nor contradictions, inconsistencies, embellishments or improvements on trivial matters, which do not affect the .
core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence.
"9. Exaggerations per se do not render the evi- dence brittle. But it can be one of the factors to test the credibility of the prosecution version when the entire evidence is put in a crucible for being tested on the touchstone of credibility." [Ed.: As observed in Bihari Nath Goswami v. Shiv Kumar Singh, (2004) 9 SCC 186, p. 192, para 9.] Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the wit- ness earlier. The omissions which amount to contradic-
tions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecu- tion's case, render the testimony of the witness liable to be discredited. [Vide State v. Saravanan (2008) 17 SCC 587, Arumugam v. State (2008) 15 SCC 590, Mahendra Pratap Singh v. State of U.P. (2009) 11 SCC 334 and Sunil Kumar Sambhudayal Gupta (Dr.) v. State of Maharashtra (2010) 13 SCC 657]."
Further, in the case of Narayan Chetanram Chaudhary & Anr. v. State of Maharashtra (2000) 8 SCC 457, this Court has considered the effect of the minor contradictions in the depositions of witnesses while appreciating the evi- dence in a criminal trial. In the aforesaid judgment, it is held that only contradictions in material particulars and not minor contradictions can be ground to discredit the testimony of the witnesses. The relevant portion of Para 42 of the judgment reads as under:
::: Downloaded on - 22/05/2024 20:33:35 :::CIS 28"42. Only such omissions which amount to a con- tradiction in material particulars can be used to discredit the testimony of the witness. The omis- sion in the police statement by itself would not necessarily render the testimony of the witness .
unreliable. When the version given by the witness in the court is different in material particulars from that disclosed in his earlier statements, the case of the prosecution becomes doubtful and not otherwise. Minor contradictions are bound to ap- pear in the statements of truthful witnesses as memory sometimes plays false and the sense of observation differs from person to person. The omissions in the earlier statement if found to be of trivial details, as in the present case, the same would not cause any dent in the testimony of PW r2. Even if there is a contradiction of the statement of a witness on any material point, that is no ground to reject the whole of the testimony of such a witness. ... ... ..."
20. By applying the aforesaid ratio, as laid down by this Court coupled with the evidence on record, we are clearly of the view that the prosecution has proved the case against all the appellant-accused beyond a reasonable doubt. The omissions like not seizing the motorcycle and also not seizing the gold chain of one of the victims, by themselves, are no grounds to discredit the testimony of key witnesses who were examined on behalf of the prose- cution, whose say is consistent, natural and trustwor-
thy."
31. Therefore, this omission is not sufficient to discard the prosecution case.
32. Even if there is some exaggeration, the same is not sufficient to discard the testimony of this witness. It was laid down by the Hon'ble Supreme Court in Achchar Singh vs. State of ::: Downloaded on - 22/05/2024 20:33:35 :::CIS 29 H.P. AIR 2021 SC 3426 that the testimony of a witness cannot be discarded due to exaggeration alone. It was observed:
24. It is vehemently contended that the evidence of the .
prosecution witnesses is exaggerated and thus false.
Cambridge Dictionary defines "exaggeration" as "the fact of making something larger, more important, better or worse than it is". Merriam-Webster defines the term "exaggerate" as to "enlarge beyond bounds or the truth". The Concise Oxford Dictionary defines it as "enlarged or altered beyond normal proportions". These expressions unambiguously suggest that the genesis of an 'exagger- ated statement' lies in a fact, to which fictitious additions are made to make it more penetrative. Every exaggera- tion, therefore, has the ingredients of 'truth'. No exag-
gerated statement is possible without an element of truth. On the other hand, the Advance Law Lexicon de- fines "false" as "erroneous, untrue; opposite of correct, or true". Oxford Concise Dictionary states that "false" is "wrong; not correct or true". Similar is the explanation in other dictionaries as well. There is, thus, a marked differ- ential between an 'exaggerated version' and a 'false ver- sion'. An exaggerated statement contains both truth and falsity, whereas a false statement has no grain of truth in it (being the 'opposite' of 'true'). It is well said that to make a mountain out of a molehill, the molehill shall have to exist primarily. A Court of law, being mindful of such distinction is duty bound to disseminate 'truth' from 'falsehood' and sift the grain from the chaff in case of exaggerations. It is only in a case where the grain and the chaff are so inextricably intertwined that in their sep- aration no real evidence survives, that the whole evidence can be discarded.[Sucha Singh v. State of Punjab, (2003) 7 SCC 643, 18.]
25. Learned State counsel has rightly relied on Gangadhar Behera (Supra) to contend that even in cases where a ma- jor portion of the evidence is found deficient if the residue is sufficient to prove the guilt of the accused, a conviction ::: Downloaded on - 22/05/2024 20:33:35 :::CIS 30 can be based on it. This Court in Hari Chand v. State of Delhi, (1996) 9 SCC 112 held that:
"24. ...So far as this contention is concerned it must be kept in view that while appreciating the .
evidence of witnesses in a criminal trial, espe-
cially in a case of eyewitnesses the maxim falsus in uno, falsus in omnibus cannot apply and the court has to make efforts to sift the grain from the chaff. It is of course true that when a witness is said to have exaggerated in his evidence at the stage of trial and has tried to involve many more accused and if that part of the evidence is not found acceptable the remaining part of the evi- dence has to be scrutinised with care and the court must try to see whether the acceptable part of the evidence gets corroborated from other evi- r dence on record so that the acceptable part can be safely relied upon..."
26. There is no gainsaid that homicidal deaths cannot be left to judicium dei. The Court in their quest to reach the truth ought to make earnest efforts to extract gold out of the heap of black sand. The solemn duty is to dig out the authenticity. It is only when the Court, despite its best efforts, fails to reach a firm conclusion that the benefit of the doubt is extended.
27. An eye-witness is always preferred to others. The statements of P.W.1, P.W.11 and P.W.12 are, therefore, to be analysed accordingly, while being mindful of the dif-
ference between exaggeration and falsity. We find that the truth can be effortlessly extracted from their statements. The trial Court fell in grave error and overlooked the credible and consistent evidence while proceeding with a baseless premise that the exaggerated statements made by the eyewitnesses belie their version."
33. It was laid down by the Hon'ble Supreme Court in Arvind Kumar @ Nemichand and others Versus State of Rajasthan, 2022 Cri. L.J. 374, that the testimony of a witness cannot be ::: Downloaded on - 22/05/2024 20:33:35 :::CIS 31 discarded because he had made a wrong statement regarding some aspect. The principle that when a witness deposes falsehood his entire statement is to be discarded is not applicable to India. It was .
observed:-
"48. The principle that when a witness deposes falsehood, the evidence in its entirety has to be eschewed may not have a strict application to the criminal jurisprudence in our country. The principle governing sifting the chaff from the grain has to be applied. However, when the evi-
dence is inseparable and such an attempt would either be impossible or would make the evidence unacceptable, the natural consequence would be one of avoidance. The said principle has not assumed the status of law but continues only as a rule of caution. One has to see the nature of the discrepancy in a given case. When the discrepancies are very material shaking the very credibility of the witness leading to a conclusion in the mind of the court that it is neither possible to separate it nor to rely upon, it is for the said court to either accept or reject."
34. Hence, the testimony of Sourav Boss (PW1) cannot be discarded due to the improvement alone.
35. Nothing was suggested in the cross-examination of this witness as to why he should be deposing falsely against the accused. He is the landowner of the building, where the accused was residing and he has no interest to depose against the accused;
rather he is interested in saving the accused to ensure that he does not lose the rent, which he was getting from the accused.
::: Downloaded on - 22/05/2024 20:33:35 :::CIS 32Therefore, the learned Trial Court had rightly relied upon his testimony.
36. HC-Sanjay Kumar (PW5) was a member of the raiding .
party. He stated in his examination-in-chief that he, HC-Virender Singh and other police officials went to Udaipur after receiving the information and dispatching it to the Superintendent of Police, Chamba. They found LC-Sanjeepa and Sourav Boss and associated them with the investigation. HC-Virender Singh searched the room of the accused. The accused was present and he identified himself as Sanjay Tomar. The police found one carton kept in the wooden box containing Pentalab Lactate Injections. Two other carry bags containing Spasmo Proxyvon capsules were found.
These were counted. 85 strips of Pentalab acetate Injections each having 10 Pentalab Lactate Injections were recovered. 124 strips of Spasmo Proxyvon Capsules each containing Spasmo Proxyvon plus capsules were also found. The police found ₹34,000/- in cash lying beneath the carry bags. The injections were put in the carton.
Capsules were placed in the carry bags. Cartons and carry bags were sealed in a cloth parcel with 10 seals of seal 'CF'. The sample seal (Ext. PW1/A) was separately prepared. NCB-I form in triplicate was filled. Seal 'CF' was put on the NCB-I form and the ::: Downloaded on - 22/05/2024 20:33:35 :::CIS 33 seal was handed over to Sourav Boss. Police seized the parcel, NCB-I form in triplicate, Sample seal and currency notes vide memo (Ext. PW1/B). Sample seal and memo were signed by him, .
Sourav Boss and HHC Mohammad Aslam. He also took the photographs (Exts.PW1/F, PW5/A and PW5/B). HC-Virender Singh prepared the rukka (Ext. PW6/A) and sent it to the police station and its copy to the Superintendent of Police, Chamba. SI-Subhash Kumar subsequently arrived on the spot and conducted the investigation. He identified the case property.
37. He stated in his cross-examination that information was received at 4:00 pm. They left for the spot at 4:10 pm. Constable-Dinesh Kumar was driving the official vehicle and HC-
Virender Singh was driving the private vehicle. HC-Virender Singh identified the house of Sourav Boss, which had two storeys.
Accused and Sourav Boss were residing on the ground floor. They did not visit the first floor. They went to the house of Sourav Boss (PW1) first and called him outside the house. No written consent was taken from Sourav Boss to search the room of the accused.
There was a double bed in the room and a small kitchen inside the room. No rent deed was checked. There was no other tenant in the house except the accused. He could not tell the dimensions of the ::: Downloaded on - 22/05/2024 20:33:35 :::CIS 34 wooden box or the colour of the carry bags. The currency notes were kept beneath the carry bags and they were picked up by HC-
Virender Singh. He did not remember the name of the laboratory, .
where the photographs were developed. Rukka was sent at 9:00 pm.
38. It was submitted that there is a discrepancy between his statement and the statement of Sourav Boss because Sourav Boss stated that the carton was found in the open wooden almirah, whereas this witness stated that the carton was found on the wooden box. This contradiction is not significant because the witnesses were deposing after the lapse of more than one year.
Further, both witnesses have consistently stated that the almirah/box was wooden, which shows that the witnesses are sure about the material from which it was made. The photograph (Ext.
PW1/F) shows that the articles have been kept on a structure made of cardboard, which can be called a box, almirah or table from its appearance; therefore, there is no real discrepancy in the testimonies of these witnesses and the same is not sufficient to discard the prosecution case.
39. HHC-Mohammad Aslam (PW6) made a similar statement in his examination-in-chief as was made by HHC-
::: Downloaded on - 22/05/2024 20:33:35 :::CIS 35Sanjay Kumar (PW5); hence, the same is not being reproduced to avoid prolixity and repetition. He stated in his examination-in-
chief that HC-Virender Singh had informed the Superintendent of .
Police, Chamba. They left the spot at 4:00 pm in the official vehicle and private vehicle. Constable-Dinesh Kumar was driving the official vehicle, whereas HC-Virender was driving his private vehicle. The house of Sourav Boss was identified by HC-Virender Singh. 15-20 houses were located adjoining the house of Sourav Boss. No independent witness was associated except Sourav Boss.
The accused and Sourav Boss resided on the ground floor. HC-
Virender Singh had called Sourav Boss outside his house. Sourav Boss had not shown any rent deed to the police. The door of the room of the accused was open. The accused was sitting inside his room. There was a double bed and a small kitchen inside the room.
He did not know that other tenants also resided in the house. He did not know the dimensions of the wooden box or the colours of the carry bags. HC-Virender Singh checked the carton and the carry bags. He and HC-Sanjay Kumar counted currency notes. HC-
Virender Singh put the seals and prepared the parcels. HC-Sanjay Kumar (PW5) took the photographs.
::: Downloaded on - 22/05/2024 20:33:35 :::CIS 3640. Nothing was suggested to this witness also in his cross-examination to show that he was making a false statement.
No reason was elucidated in the cross-examination as to why he .
would be deposing falsely against the accused. He has corroborated the testimonies of HC-Sanjay Kumar in material particulars and his testimony was rightly accepted by the learned Trial Court.
41. It was submitted that Sourav Boss stated in his cross-
examination that he had 19-20 tenants at that time, whereas other witnesses stated that there were no other tenants. The testimonies of other witnesses have to be read with the testimony of Sourav Boss that even though he had 19-20 tenants, none of those tenants was present. Being the landowner, Sourav Boss could tell the number of tenants, whereas other persons would have come to know about his tenants based on their presence on the spot. Since no one was present at the spot, therefore, the police had no reason to know about the number of tenants, and the testimonies of the official witnesses will not contradict the testimony of Sourav Boss (PW1).
42. HC-Virender Singh (PW11) also made a similar statement as was made by HC-Sanjay Kumar and the same is not ::: Downloaded on - 22/05/2024 20:33:35 :::CIS 37 being reproduced to avoid repetition. He stated in his cross-
examination that 20 minutes were taken while recording the information under Section 42 of the NDPS Act in the daily diary.
.
He did not know about the number of houses located in the village Dhampu. He did not know about the neighbours of Sourav Boss.
He did not make any effort to associate independent witnesses from Dhampu or Udaipur. They started from the office of SIU, Chamba at 4:20 pm and reached the room of the accused at 4:45 pm. The distance between Chamba and Dhampu was about 6 kilometres. He had called the Superintendent of Police, Chamba from the spot at 9:05 pm. HHC Mohammad Aslam carried the rukka at 9:00 pm. They remained on the spot till 11:30 PM. ASI-
Subhash arrived at the spot at 10:30 pm. He admitted that time was not mentioned in the inventory. The house had two storeys.
The recovery was effected from the ground floor, He did not know the number of tenants residing in the house. The NCB-I form was filled in at 8:40 pm. The seal was not used in any other case. The photographs were taken with the official camera but these could not be clicked, hence, the mobile phone was used.
43. Nothing was suggested to this witness as to why he should implicate the accused falsely or that he had any motive to ::: Downloaded on - 22/05/2024 20:33:35 :::CIS 38 depose against the accused. His testimony corroborates the testimonies of other witnesses and is duly corroborated by the rukka sent by him containing the initial information. Therefore, .
the learned Trial Court had rightly relied upon his testimony.
44. It was submitted that there is a discrepancy regarding the time because he stated that the police party left at 4:20 pm, whereas HHC-Mohammad Aslam (PW6) stated that the police left at 4:00 pm and HHC Sanjay stated that the police left at 4:10 pm. This contradiction is not material because no person looks at his watch to remember the time. The people generally give their estimations of the time which may or may not be correct.
Moreover, the persons are likely to forget the minute details with the passage of time and the slight discrepancy in time is not sufficient to discard the prosecution case.
45. Therefore, the learned Trial Court had rightly held that the testimonies of the prosecution witnesses could not be discarded due to the minor contradictions.
46. It was submitted that two independent witnesses were not associated and this is fatal to the prosecution case. Learned Trial Court had rightly held that failure to join two independent witnesses is not fatal. It will only put the Court on guard requiring ::: Downloaded on - 22/05/2024 20:33:35 :::CIS 39 it to examine the prosecution case carefully. (Please see State of HP versus Sukh Ram, 2003, Criminal Law Journal 219 H.P.)
47. In the present case, no prejudice was shown and the .
prosecution case cannot be discarded due to failure to join two independent witnesses.
48. The case property was produced before ASI-Govind Pal (PW16), who re-sealed the same with five seals of seal 'SA'. He filled columns No.9 to 11 of the NCB-I form and obtained the seal impression (Ext. PW10/A). He handed over the seal to Constable-
Tilkeshwar. He handed over the case property, re-sealing memo, seizure memo and other articles to the MHC Police Station, Sadar Chamba. He stated in his cross-examination that he had not opened the sealed cloth parcel.
49. His cross-examination shows that his testimony about resealing the case property was not challenged in the cross-
examination and the same has to be accepted as correct.
50. HC-Rajput Pardeep (PW8) stated that ASI-Govind Pal deposited one sealed cloth parcel with 10 seals of seal impression 'CF'. Five seals of 'SA', Seal sample, copy of the re-seal memo, NCB-I form in triplicate and he made the entry at Sr. No.741 (Ext.
::: Downloaded on - 22/05/2024 20:33:35 :::CIS 40PW8/A). He handed over the case property to SI-Subhash Kumar (PW19) for obtaining the inventory correctness certificate.
51. Subhash Kumar (PW19) stated that he filed an .
application (Ext. PW19/C) to obtain the correctness of inventory certificate. Learned CJM, Chamba passed an order (Ext. PW19/D) and issued the certificate (Ext. PW19/F).
52. The testimony of this witness is duly corroborated by the certificate (Ext. PW19/F), Inventory (Ext. PW19/E) and the order (Ext. PW19/D). The order mentions the details of the case property and the fact that the seals were duly intact. This order and the certificate establish that the seals on the case property were intact and the integrity of the case property is duly established.
53. HC-Rajput Pardeep (PW8) stated that the case property was deposited with him. He entered the same at Sr. No.741 and sent the case property to SFSL, Junga on 07.03.2018 through Constable Surinder Singh vide RC No. 63/2018 dated 07.03.2018 (Ext. PW8/B). He denied in his cross-examination that no case property was deposited with him. A denied suggestion does not amount to any proof and the same is not sufficient to discard his testimony.
::: Downloaded on - 22/05/2024 20:33:35 :::CIS 4154. Surinder Singh (PW9) stated that he carried the case property, copy of FIR, NCB-I form in triplicate, copies of order sheets, seizure memo and sample seal to SFSL, Junga vide RC .
No.63/2018 dated 07.03.2018. He deposited the case property at SFSL, Junga on 08.03.2018. The case property remained intact. He denied in his cross-examination that he had not carried the case property to SFSL, Junga. A denied suggestion does not amount to any proof and the same was not sufficient to discard his testimony.
55. The result of analysis (Ext. 'PX') shows that the parcel was bearing 10 seals of seal 'CF' and five seals of seal 'SA'. The seals were found intact and they were tallied with the subsequent seal sent by the Forwarding Authority. This recital in the report corroborates the prosecution's version that the case property remained intact because there was no tampering with the seal till the receipt of the case property in the laboratory.
56. The result of the analysis shows that the exhibits stated as Pentalab Lactate Injection was a sample of Pentazocine Lactate solution in glass ampoules. 31.77 mg per ml amount of Pentazocine Lactate was found in each ampoule. The average weight of the liquid was found to be 1.0022 grams per ml per ::: Downloaded on - 22/05/2024 20:33:35 :::CIS 42 ampoule and the total volume was found to be 850 ml. Thus, the total weight of the liquid was found to be 851.87 grams.
57. It was submitted that the learned Trial Court erred in .
taking the total weight instead of the weight of Pentazocine Lactate while considering the quantity. This submission is not acceptable. It was held by this Court in Nasir Husain versus State of H.P. in Cr.MP(M) No. 319 of 2024 decided on 30.04.2024 that while considering the quantity, the weight of the neutral substance cannot be ignored; therefore, the learned Trial Court had rightly calculated the weight of the neutral substance while determining the quantity recovered from the room.
58. It was submitted that the learned Trial Court had not put the time of entry of the police party to the accused while recording his statement under Section 313 of Cr.P.C. This submission is only stated to be rejected. Section 313 of Cr.P.C.
reads that the Court shall question the accused generally on the case to explain any circumstances appearing in the evidence against him. Thus, only the incriminating circumstances are to be put. The time is not an incriminating circumstance in the present case and there was no need to put the same.
::: Downloaded on - 22/05/2024 20:33:35 :::CIS 4359. The testimonies of the witnesses and the other material on record prove the prosecution case that the accused was found in possession of 850 capsules of Pentazocine Lactate, .
which is a commercial quantity, hence he was rightly held guilty of the commission of the offence punishable under Section 21 of the NDPS Act.
60. Learned Trial court had sentenced the accused to undergo rigorous imprisonment for 10 years and to pay a fine of ₹1,00,000/- which is the minimum prescribed for possessing the commercial quantity of narcotics. Thus, the learned Trial Court has already taken a lenient view and no interference is required with the same.
61. No other point was urged.
62. In view of the above, the present appeal fails and the same is dismissed.
(Vivek Singh Thakur) Judge (Rakesh Kainthla) Judge 22nd May, 2024 (saurav pathania) ::: Downloaded on - 22/05/2024 20:33:35 :::CIS