Himachal Pradesh High Court
Het Ram vs State Of Himachal Pradesh on 26 March, 2018
Bench: Dharam Chand Chaudhary, Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Appeal No. 374 of 2017
Reserved on 26.12.2017.
.
Date of decision: 26.03.2018
Het Ram ......Appellant.
Versus
State of Himachal Pradesh ......Respondent.
Coram
The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge.
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting?1 No.
For the appellant : Mr. Puneet Dhanta, Advocate.
For the respondent(s) : Mr. D.S.Nainta, Addl. Advocate
General.
Dharam Chand Chaudhary, J.
Appellant, Het Ram herein is a convict. He has been convicted by learned Special Judge-II Kinnaur at Rampur Bushehar, H.P. for the commission of an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as "NDPS Act", in short) and sentenced to undergo rigorous imprisonment for 10 years with fine of Rs. One lac, vide impugned judgment dated 19/20.6.2017.
2. A case under Section 20 of the NDPS Act was registered against him in Police Station Kumarsain, District Shimla vide FIR No. 10/2016 with the allegation that on 1 Whether the reporters of the local papers may be allowed to see the Judgment? yes.
::: Downloaded on - 20/05/2018 21:15:26 :::HCHP 223.1.2016, police party headed by PW-8 ASI Hem Chand comprising HHC Mela Ram (PW-7), HHC Sunder Singh and HC .
Kuber Chand (PW-1) left Police Station at 12:10 PM in his private car for detection of crimes under the NDPS Act towards Bithal, Singhapore and Kingal side. At the instance of PW-8 rapat Ext.
PW-5/A to this effect was entered in the rapat Rojnamcha. It is around 3:00 PM, when the police party reached at Chil more (Chil curve), the accused was noticed coming on foot from Luhri side.
On seeing the police party, he tried to flee away but of no avail as he was overpowered there and then. On enquiry, the accused disclosed his name and other antecedents. He was holding a red coloured bag (Ext. P-3) having mark "NEIZAR INDIA RICE"
photograph whereof is Ext. PW-8/C-1. PW-3 Jagat Ram arrived at that place in his maruti car bearing registration No. HP-03-0871 from Kingal side. The I.O (PW-8) apprized him about the circumstances prevailing on the spot and requested him to associate himself with the police to witness the search of the bag. The bag was checked in the presence of PW-3 Jagat Ram and black coloured substance (Ext. P-8) in the shape of sticks wrapped in transparent polythene wrapper was recovered therefrom. PW-8 ASI Hem Chand, on the basis of his experience found the same to be cannabis. PW-1 Kuber Chand was deputed to bring weight and scale from the shop of PW-3 Jagat Ram. The same were brought and the recovered cannabis weighed therewith. The same was found to be 2.600 kgs.::: Downloaded on - 20/05/2018 21:15:26 :::HCHP 3
3. The recovered cannabis was put in a parcel of cloth Ext. PA which was sealed with 9 seals of impression "T". The .
sample of seal "T" Ext. PW-1/A was drawn on a piece of cloth.
The entries in various columns of NCB form Ext. PW-4/C were filled in triplicate. The impression of seal "T" was also affixed thereon. Seal after its use was handed over to PW-3 Jagat Ram.
The recovered contraband along with sample seal and other documents were taken into possession vide memo Ext. PW-1/B. It is thereafter rukka Ext. PW-8/A was scribed and sent to Police Station through PW-7 HHC Mela Ram for the registration of case.
On the basis of rukka, FIR Ext. PW-4/B came to be registered in Police Station Kumarsain. The I.O. has thereafter prepared the spot map Ext. PW-8/B and also taken the photographs i.e. Ext.
PW-8/C-1 of the bag Ext. P-3 and the remaining photographs PW-
8/C-2 to PW-8/C-6 to prove search and seizure having taken place on the spot. The accused after interrogation was arrested.
The grounds of arrest were disclosed to him vide memo Ext. PW-
1/C. The statements of the witnesses were also recorded on the spot.
4. On completion of the investigation on the spot, the accused along with the case property was brought to Police Station. The accused as well as case property were produced by the I.O. PW-8 ASI Hem Chand, before PW-6 Virochan Negi, the then SI/SHO PS Kumarsain. PW-6 Virochan Negi filled in the blank columns 9 to 11 of NCB form Ext. PW-4/C pertaining to re-::: Downloaded on - 20/05/2018 21:15:26 :::HCHP 4
sealing of the case property. He also issued the certificate Ext.
PW-6/B qua re-sealing the same and thereafter deposited with .
PW-4 HC Liaq Ram, the then In-charge Malkhana, PS Kumarsain for safe custody. PW-4 HC Liaq Ram in turn entered the case property handed over to him in the Malkhana Register, the extract whereof is Ext. PW-4/A. He thereafter returned the case property in Malkhana in his safe custody.
5. On 27.1.2016, PW-4 Liaq Ram has handed over the case property vide RC Ext. PW-4/C along with other documents to Constable Mool Chand (PW-2) with a direction to deposit the same in Forensic Science Laboratory (FSL), Junga. PW-2 Const.
Mool Chand has deposited the case property in the laboratory in safe condition on the same day and obtained receipt on the RC.
The same was handed over to PW-4 HC Liaq Ram when he returned to the Police Station.
6. The special report Ext. PW-9/A was also prepared by PW-8 ASI Hem Chand and sent to Addl. Superintendent of Police (Rural) in the absence of Sub Divisional Police Officer, Rampur on account of being on leave, through PW-7 HHC Mela Ram. The report Ext. PX was received from the State Forensic Science Laboratory Junga and also added in the police file. The case property on its testing in the laboratory was found to be the sample of cannabis.
7. On completion of investigation PW-6 SI Virochan Negi has prepared the Challan and it was presented in the Court of ::: Downloaded on - 20/05/2018 21:15:26 :::HCHP 5 Learned Special Judge Kinnaur at Rampur Bushahar with a prayer to try and convict the accused for the commission of the offence .
punishable under Section 20 of the NDPS Act.
8. Learned Special Judge, on finding a prima-facie case made out against the accused has framed charge against him under Section 20 of the NDPS Act. The accused has not pleaded guilty to the charge and claimed trial. The prosecution, in order to sustain the charge against him, has produced 9 witnesses in all and also relied upon various documents prepared by the I.O.
during the course of search and seizure having taken place on the spot and the investigation conducted.
9. The material prosecution witnesses are ASI Hem Chand (PW-8) the I.O., HC Kuber Chand (PW-1), HHC Mela Ram (PW-7) and Sh. Jagat Ram (PW-3). The remaining prosecution witnesses HHC Mool Chand (PW-2), HC Liaq Ram (PW-4), HC Sanjeev Kumar (PW-5), SI Virochan Negi (PW-6) and HC Tara Chand are witnesses to the link evidence.
10. Learned Special Judge, on appreciation of oral as well as documentary evidence and affording the parties due opportunity of being heard has concluded that the prosecution has proved its case against the accused beyond all reasonable doubt. Consequently, the accused has been convicted and sentenced in the manner as pointed out at the outset.
11. The findings of conviction and sentence recorded by learned Special Judge have been assailed by convict Het Ram on ::: Downloaded on - 20/05/2018 21:15:26 :::HCHP 6 the grounds inter alia that the prosecution has failed to prove its case against him beyond all reasonable doubt. There is no direct .
evidence to show his involvement in the commission of the offence. The only evidence as has come on record against him is by way of the testimony of official witnesses who are interested in the success of the case. Even the evidence as has come on record by way of their testimony has not been appreciated in its right perspective. The approach of learned Special Judge in the matter throughout was hypothetical. The so called eye witness PW-3 Jagat Ram has not supported the prosecution case and rather turned hostile. The witness HHC Mela Ram was also declared hostile on the request made by learned Public Prosecutor. The impact of both the witnesses turning hostile to the prosecution has erroneously been ignored. The incriminating circumstances relied upon against the accused were not put to him in his statement recorded under Section 313 Cr.P.C. The impugned judgment, as such, has been sought to be quashed and set aside being not legally and factually sustainable.
12. Mr. Puneet Dhanta, Advocate learned counsel representing the appellant-convict has raised question of non-
compliance of Section 50 of the NDPS Act and contended that non-compliance of such mandatory provisions under the Act has vitiated the entire proceedings concerning with search and seizure. The recovery of the contraband, allegedly charas from conscious and physical possession of the accused is stated to be ::: Downloaded on - 20/05/2018 21:15:26 :::HCHP 7 not proved at all. Also that the official witnesses and the so called independent witness PW-3 Jagat Ram have contradicted .
each other while in the witness-box and thereby rendered the prosecution story highly doubtful. The testimony of the official witnesses is not consistent and rather contradictory and full of improvements. With such type of material available on record, no findings of conviction could have been recorded against the accused. The impugned judgment, as such, has been sought to be quashed and set aside.
13. On the other hand, learned Addl. Advocate General while supporting the judgment passed by learned trial Court has argued that the present being a case of chance recovery, the compliance of Section 50 was not at all required. PW-3 though has turned hostile to the prosecution case, however, admitted its case as correct on all material aspects. While taking us to the evidence available on record, it is argued that the contradiction, if any, qua timings, mode of conveyance used by the police party to reach at the spot and number of checking of vehicles etc. before the accused was nabbed, being minor and not qua on material aspects of the prosecution case, have rightly been discarded and ignored by learned trial Judge. The version of official witnesses who had witnessed the search and seizure being consistent on all material aspects and remained un- shattered in their cross-examination, also being sufficient to prove the guilt of the accused, has rightly been relied upon.
::: Downloaded on - 20/05/2018 21:15:26 :::HCHP 8Therefore, while repelling the contentions to the contrary raised on behalf of the appellant-convict, the appeal has been sought to .
be dismissed.
14. Now, if coming to the question of non-compliance of Section 50 of the NDPS Act raised on behalf of accused, in our considered opinion, the same in all fairness as well as in the ends of justice, should be answered in negative for the reason that the present is not a case where the police had prior information of someone coming with charas in his possession in that area when they were patrolling. The rapat Rojnamcha Ext. PW-5/A reveals that the police party headed by PW-8 ASI Hem Chand had left the police station at 12:10 PM for detection of crimes under the Excise/NDPS Act in the area towards Bithal, Singhapore and Kingal etc. The accused was spotted walking on a pagdandi (path) and coming to National Highway from Luhri side. He was having carry bag Ext. P-3 in his possession. Since he tried to flee away on seeing the police, therefore, he was nabbed on suspicion. The charas weighing 2.600 Kgs. was recovered from the said bag. The same was weighed with weights and scale brought from the shop of PW-3 Jagat Ram by HC Kuber Chand (PW-1). The recovered contraband was sealed in the parcel Ext.
PA with seal "T". All the witnesses i.e. PW-1 Kuber Chand, HHC Mela Ram and the I.O. PW-8 ASI Hem Chand have supported the prosecution case to this effect unequivocally. Nothing has been suggested to them to the effect that the accused was not coming ::: Downloaded on - 20/05/2018 21:15:26 :::HCHP 9 down through a pagdandi (path) to National Highway from Luhri side nor the contraband was recovered from the accused in the .
manner as claimed by the prosecution. Above all, the photographs Ext. PW-8/C-3 to PW-8/C-6 are of the spot and the accused has not disputed the same. He has also not disputed the photograph Ext. PW-8/C-2 of bag which he was carrying with him and from which the contraband was recovered. He has also not disputed the identity of the bag. The photograph Ext. PW-
8/C-1 proves the sealing process having taken place on the spot itself. The genuineness of this photograph has also not been disputed. Such incriminating circumstances were put to the accused in his statement recorded under Section 313 Cr.P.C. and his answerer is denial simplicitor, without any explanation as to why such circumstances were not correct. Although, the prosecution has to stand on its own legs and no support can be drawn from the statement of the accused recorded under Section 313 Cr.P.C., yet some explanation must come from the accused also as to why the incriminating circumstances appeared against him in the prosecution evidence. His only explanation is that he is innocent and the witnesses have deposed falsely against him which cannot be believed as true by any stretch of imagination.
It is significant to note that the documentary evidence i.e. rukka Ext. PW-8/A, on the basis whereof FIR Ext. PW-4/D has been recorded and seizure memo Ext. PW-1/B also substantiate the ::: Downloaded on - 20/05/2018 21:15:26 :::HCHP 10 prosecution case qua the manner in which the search and seizure has taken place on the spot.
.
15. True it is that no conviction can be recorded on the testimony of a police officer even if such evidence is otherwise reliable and trustworthy. It is also equally true that presumption that a person acts honestly applies as much in favour of a police officer as in respect of other persons and it is not proper to distrust and suspect him without there being good grounds therefor. Learned trial Judge has considered this aspect of the matter in its right perspective while placing reliance on the judgment of the Hon'ble Apex Court in Govindaraju alias Govinda vs. State by Sriampuram Police Station and another (2012) 4 SCC 722, Tika Ram vs. State of Madhya Pradesh (2007) 15 SCC 760, Girja Prasad vs. State of M.P. (2007) 7 SCC 625 and Aher Khima vs. State of Saurshtra AIR 1956 SC 217, which have been considered by this Court also in Criminal Appeal No. 305 of 2014 titled Sohan Lal vs. State of Himachal Pradesh decided on 2.11.2016.
16. PW-3 Jagat Ram is one of the witness to search and seizure. When in the witness-box, he tells us that around 2-3 PM while coming back to Sainj from Kingal side in Maruti Van No. HP-
03-0872, the police signalled him to stop the vehicle and he stopped the vehicle there. Thus, it is proved beyond all reasonable doubt that he was present on the spot. His further testimony that he was apprised by the police about having ::: Downloaded on - 20/05/2018 21:15:26 :::HCHP 11 recovered some illegal substance and asked for the key of his shop to bring weights and scale therefrom which a police .
personnel, namely, Kuber brought from his shop and black coloured substance was lying on the ground there also substantiate the prosecution case in this regard. He further tells us that black coloured substance in the shape of sticks in a polythene wrapper was solid which was weighed in his presence.
Though, in his examination-in-chief he has not said about the presence of the accused also at the spot nor that the police disclosed him about that black coloured substance recovered from the accused, however, a clever and move on his part, which to our mind is with sole idea to help the accused to the reasons best known to him. Anyhow, in his cross-examination conducted by learned Public Prosecutor, it was admitted that the accused was also present with the police at the spot i.e. Chil curve at that time. The bag may not be in the hands of the accused at that time, however, when he admitted that the same was lying on the ground makes it crystal clear that the bag Ext.
P-3 from which the charas has been recovered, was also lying there. It is also not the case of the prosecution that when PW-3 was associated as witness, the bag was in the hands of the accused. Its case rather is that he was asked to associate with the police to witness the investigation of the case and to which he agreed. Significantly, in his further cross-examination, PW-3 has admitted that the bag was opened in his presence and the ::: Downloaded on - 20/05/2018 21:15:26 :::HCHP 12 black coloured substance lying inside recovered therefrom. He also admitted the shape of the substance so recovered i.e. like .
sticks. He also admitted that the scale and weights were brought by the police from his shop. He tried to hoodwink the process of law while denying that the black coloured substance recovered from the bag was charas and that it was so disclosed to him even by the police also, however, unsuccessfully because the substance i.e. charas black in colour can be seen as black in colour even in the photographs Ext. PW-8/C-4 also. The further version that he got puzzled on seeing the police is again an afterthought, hence hardly of any help to the defence.
17. PW-3 Jagat Ram admitted the weight of the recovered substance as 2.600 kgs. and also that he is visible in the photographs Mark-A, B and C, later on exhibited as Ext. PW-
8/C-6, C-5 and C-4, respectively. He also admitted the sealing process while stating that the black coloured substance was packed by the police in a parcel which was sealed with 9 impressions of seal "T". He also admitted his signatures on the seizure memo Ext. PW-1/B and sample of seal Ext. PW-1/A. As per his further admission, the accused was arrested by the police and he admit his signature on the arrest memo Ext. PW-1/C also.
He has also admitted his signatures on the outer cover of the parcel Ext. PA and also identified the bag Ext. PB. He also admitted the charas which according to him was black coloured substance (Ext. PD) to be the same recovered on the spot. Since ::: Downloaded on - 20/05/2018 21:15:26 :::HCHP 13 he has supported the prosecution case on all material aspects, therefore, his further version in cross-examination that he never .
remained associated in the investigation of the case nor the search of bag was conducted in his presence and that he deliberately refused to identify the black coloured substance to be cannabis is immaterial and made purposely to save the accused from the prosecution.
18. Now, if coming to his further cross-examination conducted on behalf of the defence, PW-3 Jagat Ram again tried to hoodwink the process of law while stating that he was asked by ASI Hem Chand and other police officials to accompany them for patrolling at Chil curve and that he declined the request so made by them. He left around 11-12:00 noon with the police with weights and scale he had taken from his shop and noticed at Chil curve one vehicle and two more police officials present. It is, however, contrary to his version in examination-in-chief and cross-examination conducted on behalf of the prosecution. The suggestions put to him by learned defence counsel that one bag was taken out of the vehicle lying parked there and it was weighed has been denied being incorrect. Therefore, the plea raised by the accused in his defence that the bag was taken out of the vehicle which was lying parked there is not supported by him. The suggestions that PW Kuber did not ask for key of his shop from him and that he had not gone to Kingal nor black coloured substance was weighed in his presence have also been ::: Downloaded on - 20/05/2018 21:15:26 :::HCHP 14 denied by him being wrong, meaning thereby that the defence of the accused that the police neither asked for the key of his shop .
nor PW-3 had gone to Kingal on that day nor the recovered contraband was weighed in his presence stand belied therefrom.
Even the defence of the accused that the parcel was not sealed in his presence and that he has deposed falsely at the instance of the police also fall to the ground because he has denied the suggestions to the contrary given to him by learned defence counsel being wrong.
19. The close scrutiny of the testimony of PW-3 Jagat Ram, therefore, lead to the only conclusion that he was associated to witness the search and seizure which as a matter of fact has taken place in his presence. Not only this, but it is also proved that seal "T" after its use was handed over to him.
Though, while in the witness-box, it is stated by him that seal "T"
was given to him by the police after its use he did not remember, however, voluntarily stated that a period of one year has elapsed meaning thereby that he had feigned memory qua the seal was handed over to him or not. Anyhow, he has not denied the handing over of the seal to him.
20. The present as such, though, is a case where though PW-3 Jagat Ram who was declared hostile and allowed to be cross-examined by learned Public Prosecutor, however, in his examination-in-chief and also cross-examination, he has supported the entire prosecution case. Otherwise also, the ::: Downloaded on - 20/05/2018 21:15:26 :::HCHP 15 testimony of a hostile witness should not be discarded merely that the said witness has turned hostile to the prosecution case .
and that part of his testimony which supports the prosecution case should be relied upon against the accused. Learned trial Judge has considered this aspect of the matter also in its right perspective not only with the help of the evidence as has come on record by way of testimony of PW-3 Jagat Ram and other evidence available on record but also legally while placing reliance on the judgment of the apex Court in Ashok alias Dangra Jaiswal vs. State of Madhya Pradesh (2011) 5 SCC 123 and few other judgments of the apex Court i.e. Yomeshbhai Pranshankar Bhatt vs. State of Gujarat (2011) 6 SCC 312, State of U.P. vs. Chetram and others AIR 1989 SC 1543, Khujji alias Surendra Tiwari vs. State of Madhya Pradesh AIR 1991 SC 1853 and Bhajju alias Karan Singh vs. State of Madhya Pradesh (2012) 4 SCC 327.
Therefore, we are not in agreement with the submissions to the contrary made by learned counsel for the appellant-convict that PW-3 Jagat Ram having turned hostile has rendered the prosecution story doubtful nor he could persuade us to take a view of the matter contrary to the one taken by learned trial Court.
21. The contradictions, such as the I.O. PW-8 ASI Hem Chand and PW-7 HHC Mela Ram in their cross-examination have given the time of departure of the police party from PP Sainj as 12:10 PM whereas PW-1 HC Kuber Chand has expressed ::: Downloaded on - 20/05/2018 21:15:26 :::HCHP 16 ignorance as to at what time they proceeded from the police post Sainj are minor. As per the testimony of PW-1, they did not .
stop any vehicle for checking on that day whereas PW-8 ASI Hem Chand has expressed his inability to tell as to how many vehicles were checked by them as pointed out by learned defence counsel during the course of arguments are also minor and hence not of much relevance. The same, as such, have rightly been ignored by learned trial Court.
22. The link evidence in this case is also complete because PW-1 HC Kuber Chand, PW-7 HHC Mela Ram and PW-8 ASI Hem Chand have stated that rukka Ext. PW-8/A was first scribed into writing and it was handed over to PW-7 HHC Mela Ram on the basis thereof FIR Ext. PW-4/D was registered by PW-4 HC Laiq Ram, the then MHC, Police Station Kumarsain. The recovered charas was sealed in the parcel Ext. PA, which is not only evident from the perusal of the oral evidence as discussed hereinabove but also the photograph Ext. PW-8/C-3. The sealing process on the spot is not only established from the testimony of official witnesses but PW-3 Jagat Ram has also supported the same. Though, as per his version, he does not recollect whether the seal was handed over to him, however, he has not denied that the same was not handed over to him. The re-sealing of the case property by SI Virochan Negi (PW-6) is not only established from his own testimony but also from that of HC Liaq Ram and the I.O. PW-8 ASI Hem Chand.
::: Downloaded on - 20/05/2018 21:15:26 :::HCHP 1723. The case property was sent to Forensic Science Laboratory on 27.1.2016 by PW-4 HC Liaq Ram through PW-2 .
HHC Mool Chand vide RC Ext. PW-4/B, is not only proved from the testimony of PW-4 HC Liaq Ram but from that of PW-2 HHC Mool Chand also. The special report Ext. PW-9/A was delivered in the office of SDPO Rampur by HHC Mela Ram (PW-7). This aspect is not only supported by the statement of PW-7 but also by that of PW-9 HC Tara Chand, Reader to SDPO Rampur. The report Ext. PX, received from Forensic Science Laboratory makes it crystal clear that Ext. PA brought to the laboratory for testing was the extract of cannabis and sample of charas.
24. Therefore, the overwhelming oral as well as documentary evidence, cogent and reliable, lead to the only conclusion that charas weighing 2.600 kgs was recovered from the exclusive possession of accused Het Ram. He has, therefore, rightly been convicted and sentenced to undergo rigorous imprisonment for 10 years and to pay rupees one lac as fine, which as a matter of fact is minimum sentence provided for the commission of offence punishable under Section 20 of the NDPS Act against an accused held guilty of possessing narcotic drugs and psychotropic substance in commercial quantity without any license and authorization. Being so, the impugned judgment neither can be said to be based upon hypothesis, conjectures and surmises nor suffer from any illegality or irregularity on account of placing reliance on the testimony of the official ::: Downloaded on - 20/05/2018 21:15:26 :::HCHP 18 witnesses or merely that PW-3 Jagat Ram an independent witness has turned hostile. On the other hand, the prosecution .
has proved its case against the accused beyond all reasonable doubt.
25. For all the reasons hereinabove, this appeal fails and the same is accordingly dismissed. The impugned judgment is affirmed.
(Dharam Chand Chaudhary), Judge.
March 26, 2018.
r (Vivek Singh Thakur),
(karan- ) Judge.
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