Himachal Pradesh High Court
Between vs State Of H.P.We Are In on 17 August, 2022
Bench: Sabina, Satyen Vaidya
Reportable/Non-reportable
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
ON THE DAY OF 17th AUGUST, 2022
BEFORE
HON'BLE MS. JUSTICE SABINA
&
HON'BLE MR. JUSTICE SATYEN VAIDYA
CRIMINAL APPEAL No. 175 of 2019
Between:-
GUDDU ALIAS BANKU SON OF
BUDHE RAM, R/O VILLAGE
NANDAL, P.O. KATAULA, TEHSIL &
DISTRICT MANDI, H.P., AGED 48
YEARS, (DATE OF ARREST
12.08.2016).
....APPELLANT
(BY DEEPAK KAUSHAL, ADVOCATE)
AND
STATE OF HIMACHAL PRADESH.
.... RESPONDENT
(SH. KAMAL KANT, DEPUTY ADVOCATE GENERAL)
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Reserved on 1.8.2022.
Date of decision: 17.8.2022.
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This appeal coming on for hearing this day,
Hon'ble Mr. Justice Satyen Vaidya, delivered the following:
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JUDGMENT
By way of instant appeal, appellant has assailed .
judgment of conviction and sentence order dated 20.6.2018, passed by the learned Special Judge-I, Una, District Una, H.P, in Sessions Case No. 54 of 2016, whereby appellant has been convicted and sentenced under Sections 20 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the Act) and Section 181 of Motor Vehicles Act, as under:
Sr. Sentence of imprisonment. Fine In Default of No. payment of fine.
1. Rigorous imprisonment for a 1,00,000/- Rigorous term of ten years under Section imprisonment for 20 of the Narcotic Drugs and one year Psychotropic Substances Act, 1985.
2. Under Section 181 of MV Act 500/- -
2. The prosecution case in a nut-shell was that during intervening night of 11th and 12th August, 2016, a 'Nakka' was laid by police officials of Police Station, Chintpurni, District Una, H.P. at place Bharwain. SI/SHO, Bhup Singh (PW-9), ASI Amrik Singh (PW-11) and HHG, Shokeen Muhammad were on 'Nakka' duty. These officials were also joined by SI Ankush Dogra (PW-8) and SI Hashim Ali (PW-10), officials of Special Investigation Unit (for short, 'SIU'), Una.
::: Downloaded on - 17/08/2022 20:04:43 :::CIS -3-3. At about 4.25 AM a Car bearing registration No. HP-
33D-5887 was stopped for checking. Appellant was on the .
wheel. He got perplexed on noticing the presence of police.
Suspicion was entertained and a search of the car was conducted by PW-10 SI Hashim Ali. A backpack was found lying adjacent to the driver's seat. It was checked and another polythene bag was found inside containing charas weighing 1 kg 700 grams.
r The recovered substance was repacked in the same manner in polythene bag and the backpack and thereafter was sealed in a cloth parcel with 8 seals having impression 'M'. Relevant columns of 'NCB' forms were filled on spot by PW-10. The sealed parcel containing contraband, NCB forms, vehicle along with its documents and key were seized vide Seizure Memo Ext. PW-8/A. 'Rukka' Ext.
PW-10/B was prepared and sent to Police Station through PW-11, ASI Amrik Singh. FIR Ext. PW-13/A was registered.
The Investigating Officer prepared the spot map. Appellant was formally arrested vide Arrest Memo Ext. PW-10/F.
4. After completion of spot investigation, the case property alongwith NCB form, sample seal and the appellant were produced before SHO, Police Station, Chintpurni by PW-
10 SI Hashim Ali. The parcel containing contraband was re-
::: Downloaded on - 17/08/2022 20:04:43 :::CIS -4-sealed with 5 seals of impression 'I'. Relevant columns of NCB form were filled. Seal impressions were embossed on .
NCB form. Facsimile of seal impression was separately preserved and the case property was handed over to PW-5, HC Ravi Kumar No. 61 for safe deposit in the 'Malkhana' of the Police Station.
5. On 13.8.2016, special report under Section 57 of the Act was prepared by PW-10 and was sent to SDPO Amb through PW-2 LC Reena Kumari, which was received by SDPO Amb and handed over to PW-6 HC Ashwani Kumar No. 48 for records.
6. Investigation also revealed that Car bearing No HP-33D-5887 was owned by one Parmanand, who was also arrayed as an accused. On 15.8.2016, PW-4 HHC Gopal Singh No. 354 delivered the contraband at State Forensic Science Laboratory (SFSL) Junga for examination. The examination report prepared by SFSL Junga Ext. PW-10/H confirmed the sample to be the extract of cannabis and sample of Charas.
7. After completion of investigation, challan was filed.
Prosecution examination total 14 witnesses. Appellant was ::: Downloaded on - 17/08/2022 20:04:43 :::CIS -5- examined under Section 313 Cr.P.C. No evidence in defence was offered by the appellant.
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8. On conclusion of trial, appellant was convicted and sentenced, as noticed above, whereas the co-accused Parmanand was acquitted.
9. We have heard learned counsel for the parties and have also gone through the record carefully.
10. PW-8 SI Ankush Dogra, PW-9 SI Bhup Singh, PW-
10 SI Hashim Ali, PW-11 SI Amrik Singh, were examined as spot witnesses. PW-1, Rakesh Kumar was examined as an independent witness but he did not support the case of the prosecution. PW-2, LC Reena Kumari and PW-6, HC Ashwani Kumar were examined to prove the dispatch and receipt of special report under Section 57 of the Act Ext. PW-6/A. PW-3 HHC Baljit Kaur was examined to prove recording of DDR No. 11, dated 11.8.2016 Ext. PW-3/A. PW-4, HHC Gopal Singh was examined to prove the transit and safe custody of the contraband from Police Station, Chintpurni to SFSL, Junga.
PW-5 HC Ravi Kumar was the MHC of the Police Station, Chintpurni at the relevant time and was examined to prove the safe deposit and custody of the contraband and sample seals in the Malkhana. PW-7, Constable Rajesh Narayan and ::: Downloaded on - 17/08/2022 20:04:43 :::CIS -6- PW-13, ASI Shiv Parkash Sharma were examined to prove the recording of the FIR. PW-12, HHC Ranbir Singh was .
examined to prove the transit and safe custody of the contraband and SFSL report from SFSL, Junga to Police Station, Chintpurni.
11. The spot witnesses PW-8 to PW-11 while making depositions before learned trial Court had narrated the sequence of events that had taken place at the time and after the recovery of contraband from the car driven by the appellant. All these witnesses had been in unison while stating the relevant facts. PW-10 and PW-8 had stated that they were posted in SIU Una and on 11.8.2016 both of them had been on routine patrol duty for detection of crime under NDPS Act. When they reached Bharwain, they found that PW-9 SI Bhup Singh, PW-11 ASI Amrik Singh and HHG, Shokeen Mohammad of Police Station, Chintpurni had already laid a 'Nakka'. They also joined the said police officials. At about 4.25 a.m. a car bearing registration No. HP-33D-5887 was stopped. The appellant was on the driving seat and there was no other person occupying the car.
Appellant got perplexed at the site of police. PW-10 SI Hamish Ali entertained suspicion and checked the car. A ::: Downloaded on - 17/08/2022 20:04:43 :::CIS -7- backpack was found lying adjacent to driver's seat. On opening, it was found to contain another polythene bag, .
which had 1kg 700 grams of charas. The charas was weighed with the help of weighing scale, brought from the nearby shop, owned by PW-1. The contraband was repacked in the same manner in polythene as well as backpack and thereafter was sealed in a cloth parcel with 8 seals having impression 'M'. PW-10 prepared seizure memo Ext. PW-8/A.'Rukka' Ext.
PW-10/C was prepared and sent to Police station through PW-11, ASI Amrik Singh. After registration of FIR, spot map Ext. PW-10/C was prepared and the appellant was formally arrested vide arrest memo Ext. PW-10/D. These witnesses were cross-examined at length but nothing material could be elicited.
12. PW-11, SI Amrik Singh stated on oath that he along with PW-9 SI Bhup Singh, ASI, Hashim Ali and HHG Shokeen Mohammad were present at Bharwain main road and had laid a Nakka. PW-8, SI Ankush Dogra had also joined them at about 4.50 a.m. During nakabandi at about 4.20 a.m., car bearing Registration No. HP-33D-5887 was stopped. This witness gave the same version as given by PW-
10 and PW-8. As per this witness, Rukka was taken by him ::: Downloaded on - 17/08/2022 20:04:43 :::CIS -8- to Police Station, Chintpurni and handed over to MHC at the Police Station. He thereafter returned to the spot and further .
investigations were conducted by the Investigating Officer, PW-10. From the cross-examination of this witnesses also nothing material could be extracted on behalf of the defence.
13. PW-9, SI Bhup Singh stated that he was posted as SHO, Police Station, Chintpurni. On 12.8.2016, PW-10, Hashim Ali had produced one sealed parcel containing 1 kg 700 grams of charas before him. The parcel was sealed with 8 seals of seal impression 'M'. NCB form in triplicate with sample seals were also produced before him. He re-sealed the parcel with 5 seals of seal impression 'I' and filled the relevant column of NCB forms Ext. PW-9/A. Seal impressions were taken on the NCB forms. Facsimile of seal impression 'I' was also preserved as Ext. PW-9/B. Re-sealing certificate Ext.
PW-9/C was issued. The case property thereafter was deposited with the MHC along with NCB forms and sample seals. In cross-examination, PW-9 stated that as per entries Ext. PW-5/A in Malkhana Register, the case property was deposited by PW-10, SI Hashim Ali.
14. Thus, from above discussed evidence, recovery of 1 kg 700 grams of Charas is proved to have been made from the ::: Downloaded on - 17/08/2022 20:04:43 :::CIS -9- vehicle that was in complete control of the appellant at the time of such recovery. Once the exclusive possession of the .
contraband with appellant was proved, a presumption would arise under Sections 35 and 54 of the Act regarding culpability of the appellant. Such legal presumption has not been rebutted on behalf of the appellant.
15. Learned counsel for the appellant contended that the factum of PW-10 SI Hashim Ali and PW-8 SI Ankush Dogra leaving SIU Una on the night of 11.8.2016 vide DDR No. 11 Ext. PW-3/A was sufficient to infer that they had prior intimation about the Charas being transported by the appellant in Car No. HP-33D-5887. Our attention was drawn to the contents of DDR Ext. PW-3/A, according to which, PW-
10 and PW-8 had left Una at about 10.00 PM on 11.8.2016 for detection of crime in Narcotics. On the strength of aforesaid document, noncompliance of Section 42 (2) of the Act was alleged.
16. The contention so raised on behalf of the appellant deserves rejection. The contents of DDR Ext. PW-3/A merely recorded the departure of PW-10 and PW-8 for routine patrolling in relation with detection of offences under NDPS Act. It is not suggested even remotely from the contents of ::: Downloaded on - 17/08/2022 20:04:43 :::CIS -10- Ext. PW-3/A that PW-10 and PW-8 had left Una on the basis of some prior information. The perusal of record further .
reveals that there is no other evidence to suggest the inference regarding availability of prior information with PW-
10 and PW-8. The cross-examination of these witnesses also nowhere revealed that any question or circumstance was put to them suggesting availability of prior information with them.
17. Learned r counsel for the appellant further contended that there are major contradictions in the versions of PW-9 and PW-10. As per PW-9, SI Hashim Ali (PW-10) had deposited the case property with MHC, whereas PW-10, SI Hashim Ali has stated otherwise. According to him, the case property was handed over by him with PW-9, SHO Bhup Singh and not with MHC of the Police Station. A reference has also been made to the entry in the extract of Malkhana register Ext. PW-5/A, which shows the deposit of case property in the Malkhana by PW-10, SI Hashim Ali.
18. We have considered the argument raised on behalf of the appellant and are of the view that the discrepancies so pointed out singly cannot be held to be fatal to the prosecution case. The prosecution has been able to prove the recovery of contraband from the car driven by appellant.
::: Downloaded on - 17/08/2022 20:04:43 :::CIS -11-Even otherwise, the compliance of Section 55 of the Act is merely directory and any fault in such compliance is not by .
itself sufficient to doubt the prosecution story unless supported by some other material on record. No specific prejudice has been shown by the appellant from the above noted discrepancy.
19. Looking at the other evidence, it has also been proved that the contraband remained intact throughout and no material has been brought on record to suggest that it was tampered with at any stage. PW-5 proved its receipt and safe custody in Malkhana. PW-4 HHC Gopal Singh and PW-12, HHC Ranbir Singh proved the transit and safe custody of the contraband from Police Station to SFSL, Junga and back.
Defence has not been able to extract anything from these witnesses so as to make their versions doubtful.
20. The report Ext. PW-10/H, issued by the SFSL, Junga proved that the substance recovered from the appellant was extract of cannabis and sample of Charas.
Thus, the commission of offence under Section 20 of the Act was duly proved against the appellant.
21. A benefit has been tried to be taken from the fact that PW-1 had turned hostile and had not supported the ::: Downloaded on - 17/08/2022 20:04:43 :::CIS -12- prosecution version. He only deposed that at about 12.00 in the night, he was present in his Tea Stall and police had .
taken his weighing scale. According to this witness, nothing more had happened in his presence. He was cross-examined by learned prosecutor but nothing favouring prosecution was stated by him. It is submitted on behalf of the appellant that from the statement of PW-1, the entire prosecution story was falsified. Learned trial Court has dealt with this contention by relying upon the judgment of this Court in Criminal Appeal No. 305 of 2014, titled Sohan Lal vs. State of H.P.We are in agreement with the findings recorded by learned trial Court that appellant could not avail anything apart from the fact of independent witness turning hostile. It is not uncommon in our system that the independent witness turns hostile for various obvious reasons. It cannot be always inferred from such conduct of independent witness that the prosecution case was false. In the cases under NDPS Act, the principle of reverse burden applies. Once the conscious possession of contraband with the accused is proved, it is for the accused to bring on record such facts, which may create doubt in the prosecution story.
::: Downloaded on - 17/08/2022 20:04:43 :::CIS -13-22. Lastly, it has been argued on behalf of the appellant that even if it was not a case of prior information, .
the search of private car after sun set was against law. This contention of appellant is again liable to be rejected. It was the case of chance recovery. Nothing has been placed on record to show that PWs 8, 9 and 10 were not empowered or authorized officers. In 2021online SC 1223, Kallu Khan vs. State of Rajasthan, it has been held by the Hon'ble Supreme Court, as under: -
"After hearing and on perusal of record and the evidence brought, it is apparent that on apprehending the accused, while making search of the motor cycle, 900 gm of smack was sized to which seizure and sample memos were prepared, as proved by the departmental witnesses. In the facts of the case at hand, where the search and seizure was made from the vehicle used, by way of chance recovery from public road, the provisions of Section 43 of the NDPS Act would apply. In this regard, the guidance may be taken from the judgments of this Court in S. K. Raju (supra) and S. K. Sakkar (supra). However, the recovery made by Pranveer Singh (PW6) cannot be doubted in the facts of this case."::: Downloaded on - 17/08/2022 20:04:43 :::CIS -14-
23. Perusal of the impugned judgment reveals that learned trial Court has arrived at reasonable and plausible conclusion .
on the basis of evidence on record. No fault can be found with the findings recorded by the learned trial Court. The commission of offence under Section 20 of the Act has duly been proved against the appellant. Resultantly, no case for interference with the judgment, passed by the learned trial Court is made out. The impugned judgment and sentence is thus affirmed. The appeal is accordingly dismissed. Record be sent back forthwith. Pending applications, if any, also stand disposed of.
(Sabina)
Judge
(Satyen Vaidya)
17th August, 2022 Judge
(kck)
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