Himachal Pradesh High Court
_______________________________________________________________ vs State Of Himachal Pradesh on 6 September, 2016
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Appeal No. 576/2015
Reserved on: September 5, 2016
.
Decided on: September 6, 2016
_______________________________________________________________
Jai Shankar ...... Appellant
Versus
State of Himachal Pradesh ........Respondent
_______________________________________________________________
of
Coram:
Hon'ble Mr. Justice Rajiv Sharma, Judge
Whether approved for reporting? 1 yes.
_______________________________________________________________
For the appellant :
rt Mr. Rajeev Rai, Advocate
For the respondent :
Mr. Parmod Thakur, Additional
Advocate General
_______________________________________________________________
Rajiv Sharma, Judge:
The instant appeal has been filed against Judgment dated 7.12.2015 rendered by the learned Special Judge, Ghumarwin, District Bilaspur, Himachal Pradesh in Sessions Trial No. 8/3 of 2014, whereby appellant-accused (hereinafter referred to as 'accused' for convenience sake), who was charged with and tried for offence under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as 'Act' for convenience sake), has been convicted and sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of `10,000/-, and in default of payment of fine, to 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 21:10:19 :::HCHP 2further undergo simple imprisonment for a period of three months, for the offence punishable under Section 15 (b) of the .
Narcotic Drugs & Psychotropic Substances Act, 1985.
2. Case of the prosecution, in a nutshell, is that on 26.11.2013, Inspector Lakhbir Singh (PW-9) alongwith HC Dev Raj (PW-4), Constable Rajinder Singh (PW-5) and Constable of Subhash Chand was on patrolling duty in official vehicle bearing No. HP-59A-0130 on National Highway at Kainchi Mor.
They had set up a Naka at Nalian. At about 9.30 PM, a Bulker rt bearing registration No. HP-69-0852 came from Kainchi Mor side. It was signalled to stop. Driver was brought down for breath test. He disclosed his name as Jai Shankar. Accused got perplexed. On suspicion, Inspector Lakhbir Singh climbed onto the Bulker and on opening the rear lid on top of the vehicle, a carry bag (Ext. P2), black and white in colour was found with "Kids Fashion", written on it. Inside the bag, six black coloured polythene packets (Ext. P-3 to Ext. P-8) were found, each of them having a white coloured polythene packet (Ext. P-9 to Ext. P-14). All these packets were found to be sealed. They were suspected to be containing poppy straw. Packets were opened and weighed with the help of scale. Packets containing poppy straw (Ext. P-15) were 2.190 kg in weight. Packets were put back in the same black coloured polythene bag and thereafter ::: Downloaded on - 15/04/2017 21:10:19 :::HCHP 3 in the carry bag. Carry bag was sealed in a cloth parcel (Ext. P-
1) with nine seal impressions of 'B'. Parcel was signed by HHC .
Dev Raj and Constable Subhash Chand and accused. NCB form was filled in. sample seal was taken on separate piece of cloth.
Seal impression was put on NCB form and seal was handed over to witness HHC Dev Raj. Seizure memo Ext. PW-4/B was of prepared. Rukka Ext. PW-5/A was prepared and handed over to Constable Rajinder Singh with a direction to carry it to Police Station, Swarghat for registration of FIR. Constable Rajinder rt Singh handed over the Rukka to MHC, who registered FIR (Ext.
PW-5/B) and sent the case file to the spot. Case property was handed over to HC Gian Chand, who made entry to this effect in the Malkhana Register at Sr. No. 40. HC Gian Chand handed over the articles to Constable Desh Raj with a direction to carry them to SFSL Junga vide RC no. 101/13 (Ext. PW-8/B).
Constable Desh Raj carried all the articles to SFSL Junga and deposited them in safe condition. Investigation was completed.
Challan was put up in the Court after completing all the codal formalities.
3. Prosecution has examined as many as nine witnesses. Accused was also examined under Section 313 CrPC.
He pleaded innocence. One witness was examined by the ::: Downloaded on - 15/04/2017 21:10:19 :::HCHP 4 defence. Learned trial Court convicted the accused as noticed above. Hence, this appeal.
.
4. Mr. Rajeev Rai, Advocate has vehemently argued that the prosecution has failed to prove its case against the accused.
5. Mr. Parmod Thakur, Additional Advocate General, of has supported Judgment dated 7.12.2015.
6. PW-3 Sanjeev Kumar deposed that he was working as Manager with Chaman Enterprises, Bilaspur since 2002. On rt 7.12.2013, Rakesh Kumar authorized signatory of Chaman Enterprises had given certificate Ext. PW-3/A to the police to the effect that Jai Shankar son of Shri Roop Lal had worked as a Driver on vehicle No. HP-69-0852 belonging to Chaman Enterprises.
7. PW-4 HHC Dev Raj, testified that on 26.11.2013, he alongwith Constable Subhash Chand, Constable Rajinder Singh and SI/SHO Lakhbir Singh was on patrolling duty in an official vehicle bearing No. HP-69A-0130 on NH No. 205. They started from the Police Station at about 8.25 PM. On NH-205 at Nalian, they had set up a Naka and had checked 10-12 vehicles. At about 9.30 PM, a Bulker bearing registration No. HP-69-0852 came from the side of Kainchi Mor. It was signalled to stop.
Accused was perplexed. On inquiry, he divulged his name as Jai ::: Downloaded on - 15/04/2017 21:10:19 :::HCHP 5 Shankar son of Shri Roop Lal. On suspicion, Bulker was checked and from the rear side of the body, a carry bag, black .
and white in colour, having "kids fashion" written on it, was found. It was found to be containing six black coloured polythene packets. Each black coloured polythene packet was found to be containing another plastic packet, which was of suspected to be containing poppy straw. All the packets were opened and weighed with the help of scale lying in the IO kit.
Packets were found to be 2.190 kg in weight. Packets were put rt back in the same black coloured packets and thereafter in the carry bag. Carry bag was sealed in a cloth parcel with nine seal impressions of 'B'. NCB form in triplicate was filled in by the IO. Specimen of seal was taken on a piece of cloth. All the codal formalities were completed on the spot. No public witness was present being a lonely place. It was dark. In his cross-
examination, he deposed that no Dhaba or any other shop including petrol pump in between Swarghat and Nalian were checked. No vehicle was challaned. Firstly, the cabin of the Bulker was searched by IO. They kept standing outside the vehicle. Personal search of accused was not taken. He denied the suggestion that the accused was picked up from Dhaba. He also admitted that vehicles in line move on NH-205. They had only carried the IO kit with them from the Police Station. He ::: Downloaded on - 15/04/2017 21:10:19 :::HCHP 6 denied the suggestion that entire proceedings have been carried out in the Police Station. White coloured polythene packets were .
sealed. Contents of the packets were not tasted and smelt.
8. PW-5 Constable Rajinder Singh No. 248 has corroborated the statement of PW-4 Dev Raj, about the manner in which contraband was recovered from the vehicle being of driven by the accused. Rukka Ext. PW-5/A was drawn by the IO and handed over to him at 10.45 PM with a direction to carry it to the Police Station. On reaching the Police Station, he had rt handed Rukka to MHC who registered FIR, Ext. PW-5/B. He has categorically stated in his examination-in-chief that all the packets were opened and weighed with the help of scale lying in IO kit. In his cross-examination, he has admitted that all the white packets were sealed.
9. PW-6 Constable Desh Raj, deposed that on 28.11.2013, MHC Gian Chand had handed over to him parcel (Ext. P1) duly sealed with nine seal impressions of seal 'B', copy of recovery memo, copy of FIR, specimen of seal and NCB form in triplicate vide RC No. 101/13 for depositing at SFSL Junga.
On the same day, he deposited the articles safely and on his return to the Police Station, he handed over receipt to the MHC.
10. PW-7 Constable Sumer Chand testified that on 9.12.2013, he had been deputed to bring back the case property ::: Downloaded on - 15/04/2017 21:10:19 :::HCHP 7 and the report of the chemical examiner from SFSL Junga. He had brought the case property and report of chemical examiner.
.
He handed over the report and parcel to the MHC safely on his return to the Police Station.
11. PW-8 HC Gian Chand deposed that on 26.11.2013, at about 11.55 PM, Inspector Lakhbir Singh deposited with him of a parcel duly sealed with nine seal impressions of 'B', NCB form in triplicate and sample seal. Parcel was stated to be containing 2.190 Kg poppy straw. He made entry in the Malkhana Register rt at Sr. No. 40 and thereafter safely deposited the articles in Malkhana. He has proved the abstract of Malkhana Register Ext. PW-8/A. On 28.12.2013, the case property was sent to SFSL Junga for analysis through Constable Desh Raj vide RC No. 101/13. He, after depositing the same safely there, handed over the receipt to him on his return to the Police Station.
12. PW-9 Inspector Lakhbir Singh has deposed the manner in which contraband was recovered from the vehicle of the accused. He climbed on the Bulker and had opened the rear lid on the top of the vehicle and found a carry bag. It was containing six black coloured polythene packets. Each black coloured polythene packet contained another white coloured plastic packet. These packets were sealed and suspected to be containing poppy straw. All the packets were opened and ::: Downloaded on - 15/04/2017 21:10:19 :::HCHP 8 weighed with the help of scale lying in IO kit. Packets were found to be 2.190 kg in weight. Packets were sealed with nine .
seal impressions of 'B'. NCB form in triplicate was filled in.
Specimen of seal was taken on a separate cloth. In his cross-
examination, he deposed that the personal search of the accused was not conducted. It took them 10 minutes to search of the cabin. He has not stopped any vehicle to associate public witnesses in the case when the alleged bag was found.
Volunteered that at that time no vehicle passed by. He has also rt deposed that no person came forward to become a witness. Six white coloured packets were sealed with rubber bands and then put in black packets. He has not tasted the packets.
Volunteered that with the experience he found that the same was poppy straw.
13. PW-4 HHC Dev Raj has categorically deposed that the place where the vehicle was stopped, it was a lonely place. It was dark. PW-9 Lakhbir Singh has also deposed that no vehicle had crossed the Naka when the vehicle of the accused was intercepted. PW-4 HHC Dev Raj has categorically deposed in his examination-in-chief that carry bag having 'kids fashion', was found. It was checked. It was containing six black coloured packets. Each packet was found to be containing another plastic packet, which was suspected to be containing poppy ::: Downloaded on - 15/04/2017 21:10:19 :::HCHP 9 straw. Similarly, PW-5 Constable Rajinder Singh has also deposed that on suspicion, Bulker was checked. From rear side, .
carry bag Ext. P2 was recovered. It contained six black coloured polythene packets, each polythene packet was found to be containing another white coloured plastic packet. These were sealed. Packets were opened and weighed with the scale lying in of the IO kit.
14. Statements of PW-4 HHC Dev Raj, and PW-5 Constable Rajinder Singh, have been duly corroborated by PW-
rt 9 Lakhbir Singh. He also deposed that carry bag was recovered.
It was found to be containing six black coloured packets. Each black coloured packet contained another white coloured plastic packet. PW-9 Lakhbir Singh has also deposed categorically that though he has not tasted the packets, but with the experience he found that it was poppy straw.
15. DW-1 Jaswinder Singh testified that on 26.11.2013 at about 9/10 PM, when some truck drivers were taking their meals at his hotel, in the meantime, two police officials came in his hotel and asked about the driver of the Bulker. They took him out of the hotel alongwith another person towards Bilaspur. After 2-3 days, he came to know from newspaper that the accused had been arrested in a case. Nalian is a big village, where there are a number of houses, timber depot, school etc. ::: Downloaded on - 15/04/2017 21:10:19 :::HCHP 10 and shops. In his cross-examination, he admitted that Nalian was at a distance of half a kilometre towards Bilaspur. He also .
admitted that the timber depot closes after sunset. Accused was known to him for the last abut 2 years. He did not know what was recovered from the Bulker. He admitted that no proceedings took place in his presence. He has not gone to the of spot. Thus, the statement of DW-1 does not inspire confidence.
16. Case property was sent to FSL Junga. It reached FSL intact. Report of the FSL is Ext. PW-9/D. Contraband was rt found to be poppy straw. All the seals were intact when case property was produced before the Court while examining PW-4 HHC Dev Raj.
17. Since recovery was made from the vehicle, no personal search of accused was required to be conducted either before a Gazetted Officer or a Magistrate.
18. Prosecution has proved its case against the accused beyond doubt.
19. Accordingly, there is no merit in the present appeal and the same is dismissed, so also the pending applications, if any.
(Rajiv Sharma) Judge September 6, 2016 (vikrant) ::: Downloaded on - 15/04/2017 21:10:19 :::HCHP