Himachal Pradesh High Court
Raj Kumar & Anr vs State Of H.P on 18 August, 2017
Bench: Dharam Chand Chaudhary, Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Appeal No. 511 of 2016 a/w
Cr. Appeal Nos. 407 & 538 of
2016.
Reserved on: 22.5.2017.
.
Decided on: 18.08.2017.
1. Cr. Appeal No. 511 of 2016.
Raj Kumar & anr. ......Appellants.
Versus
State of H.P. ...Respondents.
2. Cr. Appeal No. 407 of 2016.
Girdhari Lal ......Appellant.
Versus
The State of Himachal Pradesh ...Respondents.
3. Cr. Appeal No. 538 of 2016.
State of Himachal Pradesh ......Appellant.
r Versus
Daljeet Kumar @ Kaimpa ...Respondents.
Coram
The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge.
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting?1
For the appellant(s): Mr. Aman Parth, Advocate for appellants in Cr.
Appeal No. 511 of 2016 and Mr. B.L. Soni,
Advocate, for appellant in Cr. Appeal No. 407 of
2016.
For the respondents: Mr. M.A.Khan, Addl. AG for appellant in Cr.
Appeal No. 538 of 2016 and for respondent-
State in all the appeals.
Mr. Vikas Sharma, Advocate, for respondent in
Cr. Appeal No. 538 of 2016.
Dharam Chand Chaudhary, J.
Appellants Raj Kumar, Vicky Kumar @ Luddi, in Cr. Appeal No. 511 of 2016, appellant Girdhari Lal in Cr. Appeal No. 407 of 2016 are convicts whereas respondent Daljeet Kumar @ Kaimpa in Cr. Appeal No. 538 of 2016 has been acquitted of the 1 Whether the reporters of the local papers may be allowed to see the Judgment? yes.
::: Downloaded on - 25/08/2017 22:55:57 :::HCHP 2 charge. They all hereinafter are to be referred as A-1, A-2, A-3 & A-4, respectively.
2. The judgment dated 5.7.2016 under challenge in these .
appeals has been passed by learned Special Judge, Hamirpur in Sessions Trial No. 14 of 2015. While A-1 to A-3 have been convicted under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ND & PS Act, in short) and sentenced to undergo rigorous imprisonment for a term of 10 years and to pay a fine of Rs. 1,00,000/- each for the commission of an offence punishable under Section 20 of the ND & PS Act whereas for want of cogent and reliable evidence against A- 4, he has been acquitted of the charge framed against him under Section 29 of the Act.
3. A-1 to A-3, aggrieved by the findings of their conviction and sentence recorded by learned trial Court, have assailed the same before this Court in Cr. Appeal Nos. 511 and 407 of 2016. Similarly, the State of Himachal Pradesh has assailed the impugned judgment to the extent the same deals with acquittal of A-4 of the charge framed against him for the commission of offence punishable under Section 29 of the ND & PS Act in Cr. Appeal No. 538 of 2016.
4. A-1 to A-3 have assailed the impugned judgment on the grounds, inter-alia, that the failure of the appellants to associate independent witnesses during the course of search and seizure has rendered the entire prosecution story doubtful. The search and seizure on account of non-joining of independent ::: Downloaded on - 25/08/2017 22:55:57 :::HCHP 3 witnesses is in contravention with the provisions contained under Section 100 of the Code of Criminal Procedure, which as per Section 51 of the ND & PS Act has application in the cases .
registered under the Act. Their personal search was conducted after the recovery of the contraband, allegedly charas from their possession. This allegedly has vitiated the entire proceedings. Their personal search was conducted in the Police Station in the presence of PW-1 HC Naresh Kumar and PW-2 HHC Rajesh independent witnesses.
r to
Kumar, the official witnesses. No effort was made to associate
The conducting of their personal search
after recovery of the contraband allegedly amount to violation of Section 50 of the ND & PS Act. In case they were arrested at 9:05, 9:10 and 9:15 PM, there was no occasion for PW-2 HHC Rajesh Kumar to have witnessed the same as by that time, he had left to Police Station with rukka and was not present on the spot. The vehicle being a private Car and the search thereof after sunset but before sunrise, no grounds of belief were recorded as required under proviso to Section 42 of the ND & PS Act. The Car was stopped on a National highway. Neither any other vehicle was stopped or checked nor is any such record produced in evidence. The present, therefore, was a case of prior information and as PW- 13 S.I. Surinder Singh, I.O. has not recorded reasons of his belief nor copy thereof delivered to the Superior Officer, there is complete non-compliance of Sections 42 and 50 of the ND & PS Act.
5. On the other hand, the respondent-State has assailed the findings of acquittal of A-4, on the grounds, inter-alia that the ::: Downloaded on - 25/08/2017 22:55:57 :::HCHP 4 same are based on conjectures and surmises. The evidence available on record qua involvement of the said accused in the commission of offence punishable under Section 29 of the ND & PS .
Act was not appreciated in its right perspective. Learned trial Judge has rightly convicted A-1 to A-3, however, wrongly acquitted A-4 on the basis of call details and the intimacy/conspiracy inter- se A-1 to A-3 and A-4 is not at all proved. The further findings that the I.O. has not made any effort to visit Chirgaon and Rohru record.
r to in order to ascertain the place from where the contraband was purchased are stated to be contrary to the evidence available on It is satisfactorily proved that A-4 remained in constant touch with A-3 over cell phone. A-4 made calls from his cell No. 88943 36941 over that of A-3 as driver 82628-88987 continuously for two days. The contraband was transported in the Car of A-4, the driver whereof was A-3. A-3 during his interrogation has disclosed that A-4 had given Rs. 54,000/- to purchase charas from Rohru area. Such evidence having come on record was not even disputed by defence also during the course of examination of the witnesses. A-4 in his statement under Section 313 Cr.P.C. has admitted that he was owner of Car No. HP-22B-0980 used for the commission of offence. The trial Court allegedly erred in disbelieving the testimony of police officials which allegedly was consistent throughout without having any contradiction or improvement.
6. Now, if coming to the factual matrix, on 11.11.2014, a police party headed by PW-13 S.I. Surinder Singh, I.O., In-charge ::: Downloaded on - 25/08/2017 22:55:57 :::HCHP 5 SIU, SP Office, Hamirpur accompanied by PW-1 HC Naresh Kumar, PW-2 HHC Rajesh Kumar and Const. Gogi Ram left the SIU Office at 5:30 PM for routine patrolling towards Bhota side in .
his own vehicle. Entry No. 34-A Ext. PW-6/A to this effect was made in daily diary. At about 6:00 PM, while at Kunah Bridge, near Morsu on National Highway, the police party intercepted Indica Car bearing registration No. HP-22B-0980 belonging to A-4. They stopped the vehicle for checking. While A-3 was on its wheel, A-1 and A-2 were the occupants of rear seat. On demand, A-3 failed to produce the documents of the vehicle. On suspicion, the search of the vehicle was carried out. One bag Ext. P-2 was found kept on the rear seat in between A-1 and A-2. A-1 to A-3 on enquiry failed to give satisfactory answer qua the belongings kept in that bag. The bag, therefore, was searched. One transparent polythene bag Ext. P-3 containing black coloured substance Ext. P- 4 in the form of small sticks was recovered therefrom. It is, A-1 to A-3 who themselves disclosed that the said substance was charas (cannabis). PW-13 S.I. Surinder Singh, I.O. also identified the said substance to be charas by smelling. The contraband was weighed with the help of an electronic scale and found to be 1 kg. 500 grams. Thereafter, sampling and sealing process was completed. The recovered contraband was sealed in a parcel with six seals of impression "K". The sample thereof on a piece of cloth is Ext. PW- 11/A. The NCB form Ext. PW-11/B was filled in triplicate. Facsimile of seal "K" was also taken on NCB-I form. The contraband was taken into possession vide recovery memo Ext. ::: Downloaded on - 25/08/2017 22:55:57 :::HCHP 6 PW-1/B in the presence of PW-1 HC Naresh Kumar and PW-2 HHC Rajesh Kumar. The seal after its use was handed over to PW-1 HC Naresh Kumar for safe custody.
.
7. It is thereafter rukka Ext. PW-1/C was scribed and sent to Police Station Sadar, Hamirpur through PW-2 HHC Rajesh Kumar for registration of FIR. On the basis of rukka FIR No. 271/2014 Ext. PW-13/A was registered against accused persons under Section 20 & 29 of the ND & PS Act.
8. The accused were arrested at 9:15 PM on the same day. Their personal search was conducted in the presence of PW-1 HC Naresh Kumar and PW-2 HHC Rajesh Kumar. The memos in this regard are Ext. PW-1/D to Ext. PW-1/F. PW-13 S.I. Surinder Singh, I.O. also recorded the statements of prosecution witnesses under Section 161 Cr.P.C. The spot map Ext. PW-13/F was also prepared.
9. On the completion of investigation on the spot, the police party returned to Police Station where the case property was handed over to PW-11 SI Mahender Singh, Addl. SHO. This witness has re-sealed the case property with three impressions of seal "S" and also filled in relevant columns of NCB-I form. The impression of seal "S" Ext. PW-11/A was taken separately on a piece of cloth. PW-11 SI Mahender Singh has thereafter handed over the case property to PW-7 HC Vinod Kumar, the then MHC, PS Sadar, Hamirpur for safe custody in the malkhana.
10. PW-13 S.I. Surinder Singh, I.O. prepared the spot report on 13.11.2014 and it was sent to Dy. Superintendent of ::: Downloaded on - 25/08/2017 22:55:57 :::HCHP 7 Police (Hqs.) Hamirpur, through PW-1 HC Naresh Kumar. The contraband recovered from the accused was sent to State Forensic Science Laboratory, Junga for examination through PW-3 HHC .
Chaman Lal vide RC No. 241/14. The report Ext. PY was obtained from the Laboratory and as per the same, the case property sent for analysis was found to be having extract of cannabis (charas).
11. On the completion of investigation, A-1 to A-3 were found to be in conscious and exclusive possession of charas weighing 1.480 grams whereas A-4 being the owner of vehicle bearing registration No. HP-22B-0980, has conspired with his co- accused for procuring the contraband from Chirgaon, Tehsil Rohru, District Shimla. Accordingly, challan against them was filed in the Court.
12. Learned Special Judge, on appreciation of the challan and the documents annexed thereto and on finding sufficient grounds to proceed further against them has framed charge under Section 20 of the ND & PS Act against A-1 to A-3 whereas for the commission of offence punishable under Section 29 of the ND & PS Act against A-4. They, however, pleaded not guilty, hence claimed trial.
13. The prosecution, in support of its case has examined 15 witnesses in all. The material prosecution witnesses, however, are PW-1 HC Naresh Kumar, PW-2 HHC Rajesh Kumar and PW-13 S.I. Surinder Singh, I.O. The remaining witnesses who are PW-3 HHC Chaman Lal, PW-4 ASI Lal Chand, PW-5 HC Raj Kumar, PW- 6 constable Saranjeet Singh, PW-7 HC Vinod Kumar, PW-8 Const. ::: Downloaded on - 25/08/2017 22:55:57 :::HCHP 8 Suresh Kumar, PW-9 Prithi Chand, PW-10 Ashwani Kumar, PW-11 SI Mahender Singh, PW-12 Devender Verma, PW-14 Ankur Pathak and PW-15 Insp. Sher Singh are formal as they remained .
associated during the investigation in one way or the other.
14. The statements of all the accused were also recorded under Section 313 Cr.P.C. In defence, they have examined Lalman Sharma, Dy. Superintendent of Police (Hqrs.), Hamirpur as DW-1 to prove Ext. DA, newspaper clipping.
15. S/Sh. Aman to Parth and B.L.Soni, representing A-3 Girdhari Lal, appellant in Cr. Appeal No. 407 of 2016, whereas A-1 Raj Kumar and A-2 Vicky Kumar, appellants in Advocates, Cr. Appeal No. 511 of 2016 have strenuously argued that the present was being a case of prior information qua trafficking of narcotic drug and psychotropic substance, the compliance of Section 42 of the Act, mandatory in nature should have been made by the I.O. before proceeding to lay the Naka. Also that, on account of non-joining of independent witnesses, the procedure qua search and seizure being in contravention with the provisions contained under Section 100 of the Code of Criminal Procedure are vitiated, hence no findings of conviction could have been recorded against A-1 to A-3. Additionally that once the I.O suspected the accused carrying some narcotic drug or psychotropic substance, should have resorted to the compliance of Section 50 of the ND & PS Act. Besides the search of the bag allegedly lying in middle of the rear seat of the Car, the space in between A-1 & A-2, the personal search of the accused was also conducted which ::: Downloaded on - 25/08/2017 22:55:57 :::HCHP 9 according to the learned counsel could have not been conducted without obtaining their consent within the meaning of Section 50 of the ND & PS Act. The inconsistencies and improvements in the .
evidence as has come on record by way of testimony of official witnesses has demolished the entire prosecution story and as such no findings of conviction could have been recorded on the basis of the evidence so come on record.
16. Learned Addl. Advocate General, however, has repelled the arguments so addressed on behalf of the accused persons and contended that the present being a case of chance recovery, neither compliance of Section 42 nor Section 50 was required and the spot being an isolated place, it was not possible to join independent witnesses, that too when about 6:00 PM, the accused were nabbed. It was also urged that the evidence as has come on record by way of testimony of official witnesses is cogent and reliable and minor contradictions are not at all fatal to the prosecution case. Learned trial Court, as such, has rightly convicted all the accused for the offence they committed.
17. Learned Addl. Advocate General, while addressing arguments in Cr. Appeal No. 538 of 2016 filed by the State of H.P against accused of A-4 Daljeet Kumar alias Kaimpa has pointed out that the evidence in the shape of CAFs and CDRs pertaining to cell numbers of the accused particularly that of A-4 88943 36941 and that of A-3 82628-88987 is suggestive of that both accused were in constant touch with each other on 10.11.2014 and 11.11.2014. The location of the tower of cell No. 82628-88987 of ::: Downloaded on - 25/08/2017 22:55:57 :::HCHP 10 A-3 was in Rohroo area of Shimla district. Since A-4 was owner of the car intercepted by the police with charas and A-1 to A-3 during their interrogation have revealed that a sum of Rs. 54,000/- was .
given to them by A-4 along with his vehicle and they were deputed to Chirgaon/Rohroo in district Shimla to bring charas therefrom is sufficient to bring guilt home to the accused. Learned Trial Court is stated to have erroneously concluded that for want of cogent and reliable evidence, involvement of he said accused is not established.
18. Sh.
r Vikas
Sharma, Advocate,
representing respondent-A-4 in Cr. Appeal No. 538 of 2016 has, learned counsel however, supported the findings recorded by learned trial Court on the grounds that for want of cogent and reliable evidence, particularly qua the entrustment of Rs. 54,000/- by A-4 to his co- accused and there being no connecting evidence to show that the charas was purchased by his co-accused from Rohroo/Chirgaon area of District Shimla, no criminal liability could have been fastened upon A-4. The contentions to the contrary, therefore, according to learned counsel are germane of the mind of learned Addl. Advocate General.
19. In view of the submissions made by learned counsel representing the appellants-convicts in Cr. Appeal No. 407 of 2016 and Cr. Appeal No. 511 of 2016, the following points emerge for discussion and determination:
"1. Whether the present is a case where the police had prior information qua illicit trafficking of narcotic ::: Downloaded on - 25/08/2017 22:55:57 :::HCHP 11 drugs and psychotropic substances and as such for want of compliance of Section 42 of the ND & PS Act, the proceedings against appellants-convicts/accused persons are vitiated?
.
2. Whether the police party had an occasion to suspect that the accused were carrying charas with them in the Car bearing registration No. HP-22B-0980 and non-compliance of Section 50 of the ND & PS Act has vitiated the proceedings in the trial against the appellants-convicts?
3. Whether before the personal search of appellants-convicts conducted vide seizure memos Ext. PW-1/D to Ext. PW-1/F without compliance of Section 50 of the ND & PS Act has vitiated the proceedings against them?
4. Whether the I.O. has not associated independent witnesses intentionally and deliberately despite availability nearby and on this score also, the proceedings held against the appellants-convicts are vitiated?
5. Whether the evidence as has come on record by way of testimony of official witnesses is not worthy of credence and rather on account of inconsistencies, discrepancies and improvements should not have been relied upon to record findings of conviction against the appellants-convicts?"
20. Now, if coming to determination of the points hereinabove, we fail to understand as to how the present is a case of prior information for the reason that entry Ext. PW-6/A in daily diary of Police Station, Sadar, Hamirpur, PW-13 S.I. Surinder Singh, I.O, In-charge SIU, S.P. Office, Hamirpur, accompanied by PW-1 HC Naresh Kumar, PW-2 HHC Rajesh Kumar and Constable ::: Downloaded on - 25/08/2017 22:55:57 :::HCHP 12 Gogi Ram of SIU Hamirpur left Police Station for patrolling to detect the criminals involved in the commission of offence of theft etc. in Bhota area of District Hamirpur at (17:35 hours) 5:35 PM.
.
PW-1 HC Naresh Kumar, PW-2 HHC Rajesh Kumar and PW-13 S.I. Surinder Singh, I.O, all have supported the prosecution case in this regard in one voice. It also stands established from their statements that they laid Naka over the bridge at Kunah Khud near Morsu around 6:00 PM when car bearing registration No. HP-
3.
r to 22B-0980 arrived. The driver was signaled to stop the same. PW- 13 S.I. Surinder Singh, I.O asked for documents of the car from A-
He, however, failed to produce the same. On enquiry, he disclosed his name to the I.O. as Girdhari Lal. A-1 and A-2 occupying the rear seat had also disclosed their names as Raj Kumar and Vicky. On checking of the vehicle, A-1 and A-2 were found holding a green/yellow coloured carry bag in their hands on the space in the middle of the seat. When the accused failed to respond satisfactorily as to what was being taken in the bag Ext. P- 2, the same was checked. One transparent polythene bag Ext. P-3 was found kept inside the bag Ext. P-2. On opening the polythene, black coloured substance in the shape of sticks was found kept therein. On testing and smelling, the substance was found to be charas. Therefore, the evidence as has come on record by way of rapat rojnamcha Ext. PW-6/A as well as testimony of PW-1 HC Naresh Kumar, PW-2 HHC Rajesh Kumar and PW-13 S.I. Surinder Singh, I.O is suggestive of that the present is not a case where the police had prior information qua illicit trafficking of narcotic drugs ::: Downloaded on - 25/08/2017 22:55:57 :::HCHP 13 and psychotropic substance i.e. charas or some drug and rather the police was on routine patrol duty to detect the crimes, particularly theft in the area. The defence has miserably failed to .
satisfy us that the prosecution case qua the police party was on patrol duty and rather had prior information of illicit trafficking of narcotic drug and psychotropic substance. The newspaper clipping Ext. DA, no doubt, reveals that the police had prior information qua illicit trafficking of narcotic drug and psychotropic substance, however, DSP Lalman Sharma who allegedly gave a press note to media, while in the witness-box as DW-1 has denied the same as according to him, the news item encircled red in Ext. DA was not released by him to the media. Therefore, no doubt, as per Ext. DA, the news item encircled red at point "A" was shown to have been given to the media by DSP Lalman Sharma, however, as noticed hereinabove, Mr. Lalman Sharma while in the witness-box as DW-1 has not supported the defence version at all in this regard. We, therefore, are in agreement with the findings recorded by learned trial Court that the compliance of Section 42 of ND & PS Act is not applicable in the case in hand. As a matter of fact, learned trial Court has concluded so after taking into consideration the evidence available on record and also the law applicable qua this aspect of the matter.
21. Now, if coming to the second point urged by the defence, again we are in agreement with the findings recorded by learned trial Court that compliance of Section 50 of the ND & PS Act was not at all required in the case in hand for the reason that ::: Downloaded on - 25/08/2017 22:55:57 :::HCHP 14 it was a case of chance recovery and the charas weighing 1.500 kgs was recovered from the bag Ext. P-2 lying in the middle of the rear seat occupied by A-1 and A-2. It is well settled at this stage .
that when the search of bag Ext.P-2 was conducted and the contraband recovered there from, the compliance of Section 50 of the ND & PS Act is not required. As a matter of fact, the compliance of Section 50 of the ND & PS Act is required only in those cases where personal search of the person apprehended is required to be conducted. The present, being a case of recovery of charas weighing 1.500 kgs. from the bag Ext. P-2, there is no question of violation of Section 50 of the ND & PS Act. As per the prosecution evidence, PW-13 S.I. Surinder Singh, I.O enquired from A-1 and A-2 as to what was in the bag Ext. P-2 and when they failed to answer satisfactorily, the bag was opened and charas kept in another polythene Ext. P-3 was recovered threfrom. The present, as such, is a case where the I.O. had no occasion to suspect that the accused were carrying narcotic drug and psychotropic substance in the said bag warranting the compliance of Section 50 of the ND & PS Act. The ratio of the judgment of the Hon'ble Apex Court in Gurjant singh @ Janta vs. State of Punjab, Cr. Appeal No. 1868 of 2013 as such is not attracted in this case in view of the facts are distinguishable. Such a defence raised by the appellants-convicts in the trial Court has rightly been considered and rejected in the light of the law applicable and also the facts of the case. The findings so recorded by learned trial Court also call for no interference.
::: Downloaded on - 25/08/2017 22:55:57 :::HCHP 15
22. If coming to 3rd point formulated hereinabove, true it is that the personal search of all the accused was conducted by the I.O. vide recovery memos Ext. PW-1/D to Ext. PW-1/F in the .
presence of PW-1 HC Naresh Kumar and PW-2 HHC Rajesh Kumar. During their search, their personal belongings such as cell phones and currency notes etc., as detailed in the memos hereinabove were recovered. Their search, however, was simply for the purpose of "jamatalashi" as is usually conducted by the police after the accused is taken into custody and before putting him inside the lock up. The evidence which suggests that the personal search of the accused was conducted after their arrest has come on record by way of the testimony of PW-1 HC Naresh Kumar and PW-2 HHC Rajesh Kumar as according to them, the personal search of all the three accused was conducted after their arrest. Therefore, the defence is not justified in claiming support to its case that the personal search of accused persons was conducted without seeking their option is violative of Section 50 of the ND & PS Act for the reason that by the time their personal search was conducted, the contraband i.e. charas was already recovered, that too not from their person but from the bag Ext. P-2 kept in the middle of rear seat which was occupied by A-1 and A-2. Therefore, it lies ill in the mouth of the accused that on account of conducting their search without seeking option has vitiated the proceedings against them in the trial.
23. The 4th point urged on behalf of the accused is perversity of the impugned judgment for want of non-joining of ::: Downloaded on - 25/08/2017 22:55:57 :::HCHP 16 independent witnesses by the I.O. during the course of search and seizure having taken place on the spot. The spot map is Ext. PW- 13/F. The bridge in this map is at point "A". The spot is .
surrounded by bushes and no habitation exists nearby, of course, the rain shelter is situated there. However, it is not suggestive of that someone was available there. On behalf of the accused suggestion was given to PW-1 HC Naresh Kumar and PW-2 HHC Rajesh Kumar that efforts were not made by the I.O. to associate r to the independent witnesses and they have admitted the same to be true and correct. However, when the place was isolated, it can reasonably be believed that no one was available there for being associated to witness the sampling and sealing process etc. because search has already taken place when the I.O. recovered the charas from the bag. Of course, the place of recovery is National Highway, water store of I & PH department was nearby or not, PW-1 HC Naresh Kumar has expressed his ignorance qua it whereas as per the version of PW-2 HHC Rajesh Kumar in his cross-examination, the said store was in existence nearby. The existence of store is hardly of any help to the defence for the reason that it was not its case that someone was deployed or residing in that store. Again, vegetable vendor was sitting there or not also does not substantiate the claim of the accused as nothing was suggested to the witnesses that he was present there at that time. PW-1 HC Naresh Kumar has denied the existence of Radha Swami Hospital at a distance of 100-125 meters from the spot, however, according to him, the distance of said hospital was about ::: Downloaded on - 25/08/2017 22:55:57 :::HCHP 17 1 km. there from. Nothing tangible has come on record to show that the said hospital was at a distance of 100-125 mtrs. and not 1 km. away therefrom. Nothing even has been suggested to the .
witnesses that during the course of search and seizure having taken place, the vehicles crossed, however, the I.O. did not make any effort to associate the occupants of those vehicles. Therefore, it would not be improper to conclude that it was not possible to join the independent witnesses who were present there. Learned trial Court, while holding that official witnesses are as much as good as any independent person and their testimony can be relied upon if otherwise inspire confidence has not only taken into consideration the given facts and circumstances of this case but also discussed the evidence as well as legal position attracted in a given situation. Therefore, we find the present a case where non- joining of the independent witnesses is not fatal to the prosecution case.
24. Now, if coming to the 5th and last point, we have noticed from the testimony of PW-1 HC Naresh Kumar and PW-2 HHC Rajesh Kumar, the witnesses associated by PW-13 S.I. Surinder Singh, I.O to witness the search and seizure that they have supported the prosecution case in toto. There is no inconsistency, contradiction or improvement in their statements recorded in examination-in-chief. In the cross-examination also, their testimony remained unshattered because they are categoric in stating that the police party left the SIU office at 5:35 PM and laid the Naka at about 5:55 PM. The defence failed to discredit ::: Downloaded on - 25/08/2017 22:55:57 :::HCHP 18 their version qua the manner in which the car occupied by the accused persons was intercepted and the recovery of charas weighing 1.500 kgs. They have also deposed in one voice even in .
their cross-examination also qua the manner in which the sampling of the case property and seizure thereof has taken place. The minor contradictions qua timings etc. of preparation of rukka and its delivery in the Police Station by PW-2 HHC Rajesh Kumar etc. are not at all fatal to the prosecution case. The I.O. has also
25.
r to supported the manner in which the car was intercepted and the charas recovered from the accused persons.
The link evidence as has come on record by way of testimony of HHC Janak Raj, not numbered as a witness, is suggestive of that the case property was produced in the Court duly sealed and when returned it was duly sealed with the seal of the Court. There is nothing to suspect the testimony of PW-3 HHC Chaman Lal who had taken the case property to SFSL that it was deposited there in safe custody. It is PW-4 Lal Chand, the then Head Constable PS Sadar Hamirpur, who had brought the case property back from the Laboratory. PW-5 HC Raj Kumar, the reader to DSP (Hqrs) Hamirpur has proved the delivery of special report Ext. PW-5/A to the then DSP Hamirpur Sh. Lalman Sharma. Const. Saranjit Singh PW-6 has entered the rapat rojnamcha Ext. PW-6/A qua departure of the police property from SIU office to the spot by patrolling and qua Ext. PW-6/B qua its arrival along with accused persons and the case property. He has also supported the rapat Ext. PW-6/C which pertains to re-sealing ::: Downloaded on - 25/08/2017 22:55:57 :::HCHP 19 of the case property by PW-11 SI Mahender Singh. PW-7 Vinod Kumar was posted as MHC at the relevant time. He has supported the prosecution case qua deposit of the case property duly sealed .
in the malkhana with him. It is he who had dispatched the same to FSL for analysis.
26. Now, if coming to the statement of the accused under Section 313 Cr.P.C., though they have denied the entire prosecution case either being wrong or for want of knowledge, however, while answering question No. 3 admitted that they were travelling in car bearing registration No. HP-22B-0980 which was intercepted at Kunah bridge around 6:00 PM by the police party. Being so, they have admitted their presence in the vehicle when it was intercepted by the police. There is nothing to believe that they were falsely implicated by the police. They have examined Sh. Lalman Sharma, the then DSP (Hqrs.) to show that the police had prior information qua illicit trafficking of narcotic drugs and psychotropic substances, however, for the reasons stated hereinabove, they have failed in their attempt to prove so because DW-1 DSP Lalman Sharma has denied the news item encircled red at point "A" in Ext. DA.
27. In view of what has been said hereinabove, learned trial Court has not committed any illegality or irregularity in convicting as well as sentencing A-1 to A-3 for the commission of the offence punishable under Section 20 of the ND & PS act. Both the appeals, being Cr. Appeal No. 511 of 2016 and Cr. Appeal No. 407 of 2016 are without any merit, hence deserves dismissal. ::: Downloaded on - 25/08/2017 22:55:57 :::HCHP 20
28. Now, if coming to the appeal preferred by the State against A-4, true it is that CAFs and CDRs of cell No. 88943 36941 of A-4 and No. 82628-88987 of A-3 are suggestive of that they were .
in touch with each other during 10th and 11th November, 2014. The location of tower with respect to cell phone of A-3 was in Rohru area, an interior of Shimla District. The collecting of the evidence such as CAFs and CDRs find support from the testimony of PW-8 Const. Suresh Kumar who has collected the CAFs and CDRs of these numbers.
PW-14 Ankur Pathak is Nodal Officer, Reliance Communication Ltd., Chandigarh. It is he who generated the record i.e. CAFs and CDRs and forwarded the same to the S.P. Office, Hamirpur through e-mail. As per his version Ext. PW-8/C, is CAF of Girdhari Lal A-3 and he has proved ID proof of said accused as Ext. PW-14/B. He has also proved the tower location report Ext. PW-14/C which according to him is correct as per the original. The true copy of the tower location as per this witness is Ext. PW-8/C. However, irrespective of such evidence available on record, it cannot be said that A-3 and A-4 had hatched conspiracy with their co-accused A-1 and A-2 and as a part of such conspiracy, A-4 had paid a sum of Rs. 54,000/- to A-3 and deputed him to buy charas from Rohroo/Chirgaon area of district Shimla along with A-1 and A-2. Above all, the Investigating Agency has not cared to visit Rohroo/Chirgaon area to find out the alleged source from where the charas was purchased by A-1 to A-3. Therefore, the charge under Section 29 of ND & PS Act is not at all proved against A-4 and he has been rightly acquitted of such a ::: Downloaded on - 25/08/2017 22:55:57 :::HCHP 21 charge by learned trial Court. We find no merit in Cr. Appeal No. 538 of 2016 filed by the State against A-4 Daljjeet Kumar @ Kaimpa, the same also deserves dismissal.
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29. For all the reasons hereinabove, all the three appeals fail and the same are accordingly dismissed. Personal bonds executed by accused Daljjeet Kumar @ Kaimpa are cancelled and surety discharged.
(Dharam Chand Chaudhary), Judge.
August 18, 2016. (Vivek Singh Thakur),
(karan)
r Judge.
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