Himachal Pradesh High Court
Dharam Singh vs State Of H.P on 16 August, 2023
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. A. No. 668/2019 Reserved on: 10.8.2023 Decided on : 16.8.2023 Dharam Singh .....Appellant .
Versus
State of H.P. ....Respondent
Coram:
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Ranjan Sharma, Judge.
of Whether approved for reporting?1 No For the Appellant:rt Mr. Naresh K. Thakur, Senior Advocate with Mr. Karan Veer Singh, Ms. Ritu Singh and Mr. Divya Raj Singh, Advocates.
For the Respondent: Mr. Anup Rattan, A. G. with Mr. I. N. Mehta, Sr. Additional Advocate General, Ms. Sharmila Patial, Addl.
A.G. and Mr. J. S. Guleria, Dy.A.G. ____________________________________________________________________ Justice Tarlok Singh Chauhan, Judge The appellant/convict has filed the instant appeal against the judgment, dated 8/18.11.2019 passed by the learned Special Judge, Chamba, H.P. in Sessions Trial No. 1/2018, whereby he has been convicted and sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to further undergo simple imprisonment for a period of 1 year 1 Whether reporters of the local papers may be allowed to see the judgment? Yes.
::: Downloaded on - 19/08/2023 20:32:21 :::CIS 2under Section 20 (b) (ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985( in short, "NDPS Act").
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2. The case of the prosecution is that on 6.7.2017, at about 5:10 A.M., PW1 Constable Subhash Kumar, PW2 Constable Rakesh Kumar, PW3 SPO Lekh Raj and PW14 Investigating Officer HC Yogesh Kumar proceeded in vehicle No. HP48-4949 belonging to PW14 along with I.O. kit and of electronic scale from Police Post Nakrod towards Bharara-
Behnota-Thati Mod etc. in connection with patrolling and rt nakkabandi vide rapat No. 22. at about 8.30 A:M when they were present at Thati Mod, then they saw one person coming on foot from 'pagdandi' from Bharara side having a white coloured carry bag on his right hand.
3 On seeing the police party, that person ran towards back side and while running threw his white coloured carry bag down side 'pagdandi'. The person was nabbed by the police party at a distance of about 15-20 steps. The credentials of that person were asked, on which he disclosed his name to be Dharam Singh, son of Gopala (Convict herein). When the carry bag was thrown by the convict, suspicion arose that the same may be containing some suspicious articles or contraband.
::: Downloaded on - 19/08/2023 20:32:21 :::CIS 34 Since the place was secluded one, where no independent witness was available, therefore, PW14 .
Investigating Officer sent PW2 to bring some independent witness from nearby place, who came back after about 20-25 minutes and disclosed to PW14 that no independent witness was found. Thereafter, on opening knot of polythene bag, black coloured hard substance in the shape of round sticks was of found. On the basis of smell and experience, black coloured hard substance was found to be rt charas/cannabis. PW14 weighed the recovered contraband with the help of electronic scale. On weighment, same was found to be 1 kg. Thereafter, the recovered charas was put inside the polythene bag and the polythene bag was put inside blue coloured cloth bag.
Thereafter, the blue coloured bag was put inside the white coloured carry bag in the same manner. White coloured carry bag was sealed in a white piece of cloth with five seal impressions of seal "TE". Sample seal, Ext. PW1/A was drawn on a separate piece of cloth.
5 PW14 filled-in NCB form in triplicate and seal "TE"
was embossed on NCB form in triplicate. The seal "TE" after its use, was handed over to PW2. Thereafter, the parcels containing charas, NCB forms in triplicate and sample seal ::: Downloaded on - 19/08/2023 20:32:21 :::CIS 4 were taken into possession vide recovery and seizure memo, Ext. PW1/B, which were signed by PW2 and the appellant.
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Copy of the recovery and seizure memo was handed over to the appellant free of costs. The videography and photography of the proceedings of the spot were conducted by PW3 from his mobile. Thereafter, PW14 prepared ruqa and handed over the same to PW1 to be delivered at Police Station Tisssa for of registration of an FIR. PW1 left the spot along with ruqa and handed over the same to MHC, Police Station Tissa.
rt 6 After lodging an FIR, case file was handed over to PW1, which was then delivered to PW14 at Tissa Bus Stand.
Statement of PW1 under Sectin 161 Cr. P.C. was recorded by PW14 at Tissa Bus Stand.
7 On 7.7.2017, PW14 moved an application Ext.
PW14/B before the learned Judicial Magistrate, 1st Class, Chamba, along with annexure, Ext. PW14/D and the case property for issuance a certificate of correctness of inventory under Section 52A of the NDPS Act, upon which the learned Judicial Magistrate, passed order, Ext. PW14/C and issued certificate, Ext. PW14/E in this regard. Photographs, Ext.
PW14/F and Ext. PW14/G were also clicked during these ::: Downloaded on - 19/08/2023 20:32:21 :::CIS 5 proceedings and the case property was again deposited with MHC.
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8 On 8.7.2017, MHC Police Station Tisssa handed over to PW1 one sealed parcel sealed with five seal impressions of seal "TE", "TD" and "JM" Chamba each alongwith sample seals, NCB forms in triplicate, recovery and seizure memo, of reseal memo, copy of FIR and proceedings under Section 52-A of NDPS Act, with a direction to deliver the same at FSL Junga rt vide R.C. No. 110/17, dated 8.7.2017. The same was accordingly deposited at FSL Junga, and on return, PW1 handed over RC to MHC, Police Station Tissa.
9 This is case of prosecution as unraveled in the consistent statements of PW1, PW2, PW3, whose statements were recorded by the court on the same day i.e. 24.10.2018.
10 To the similar effect is statement of PW14, Investigating Officer, who, in addition to above, stated that on 28.8.2017, he moved an application, Ext. PW14/J, upon which learned Judicial Magistrate passed an order, Ext. PW14/K and issued certificate, Ext. PW14/L under Section 52A of the NDPS Act. Photograph, Ext. PW14/M was also clicked. He further deposed that the learned Judicial Magistrate had obtained two ::: Downloaded on - 19/08/2023 20:32:21 :::CIS 6 representative samples of 26 grams each and the bulk parcel and sample parcel were sealed with five seals each of "JM"
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Chamba. On the same day, copy of FSL report was handed over to the appellant in the jail and receipt, Ext. PW14/L was obtained on the back of FSL report, Ext. PX. The case property remained deposited with MHC Malkhana. Learned Judicial Magistrate had also issued seal samples, Ext. PW14/O and Ext.
of PW14/P. 11 It was however argued by Mr. N.K. Thakur, learned rt Senior Advocate, assisted by Mr. Divya Raj Singh, Advocate, that merely parrot-like statements given by PW1 to PW3 and PW14 should not have been relied upon and cannot be labeled as trustworthy as the witnesses could be tutored. He was at pains to point out that there are a lot many discrepancies in the instant case, which are sufficient to throw out the case of the prosecution. It was argued that according to PW1, his statement under Section 161 Cr.P.C. was recorded twice, first on 6.7.2017, but he was not aware of date of the second statement.
12 To similar effect is statement of PW2 and more over, both PW1 and PW2 were not at all aware as to how many documents were prepared on the spot, though as per the ::: Downloaded on - 19/08/2023 20:32:21 :::CIS 7 prosecution case, they were present on the spot when the appellant was apprehended. Further, PW1 was not aware .
regarding primary school at Mangloh, which was at a distance of 150 mts despite the fact that he has been posted at Police Post Nakrod for about five years as admitted by him in his cross-examination. It has come in testimony of PW2 that school was at a distance of 50 mts from the spot.
of 13 However, we find no merit in the said contention as in all criminal cases, normal discrepancies are bound to occur rt in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition, such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about 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. But, if the contradictions and inconsistencies are not so material so as to create a doubt about the involvement of the appellant in the instant case or embellishments and improvements are trivial, which do not affect core of the prosecution case, then the same cannot be made a ground for rejecting the entire of the prosecution in its entirety.
::: Downloaded on - 19/08/2023 20:32:21 :::CIS 814 Exaggeration per se do not render the evidence brittle. But it can be one of the factors to test credibility of the .
prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility.
Therefore, mere marginal variations in the statements of witnesses can be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier.
of 15 As noticed above, version of the prosecution, as set out in the earlier part of the judgment is verbatim narration of rt the spot witnesses, i.e. PW1, PW2, PW3 and PW14 and the manner, in which the contradictions have been pointed point out, does not go to the root of the case of the prosecution so as to affect its core. The contradictions pointed out are not at all significant and are bound to come with the passage of time.
16 After careful examination of the evidence on record, it cannot be stated that substratum of the case of the prosecution is in any manner dented or the evidence of the police officials is not acceptable thus, the discrepancies pointed out by the learned senior counsel, as discussed above, do not warrant rejection of the evidence of the prosecution.
17 Learned senior counsel for the appellant has vehemently argued that the case of the prosecution is ::: Downloaded on - 19/08/2023 20:32:21 :::CIS 9 absolutely false as the appellant on the relevant day was digging up a pit in the house of DW2 Hira Lal and this fact is .
duly proved by the defence witnesses, DW1 Prem Nath, who was a co-worker with the appellant, and by DW2 Heera Lal, who had engaged the appellant. He would argue that it is for this precise reason that the prosecution has not associated independent witnesses even though they were present at the of spot. He has further argued that alleged spot was not isolated and it has come in the evidence that there are various villages, rt to which road goes from the spot. There is Dhaba and house of Loki alias Fauji situated at Ram Singh mod, which is at a distance of about 200 mts from the spot towards village Behnota. Further, there is a government primary school at Mangloh, which is at a distance of 50 mts, where children are brought by the parents and especially when it has been admitted by PW14 that school starts at 9:A.M. and continues upto 2:00 P.M. The 'Nakka' as per the prosecution case, had been laid at 8.30 A.M. and then about 20-25 minutes as per the prosecution case were spent on finding an independent witness. By that time, appearance of the students/parents would have definitely been available and could have conveniently been associated.
::: Downloaded on - 19/08/2023 20:32:21 :::CIS 1018 In support of such contention, he has placed strong reliance on the judgment of the Hon'ble Supreme Court in .
Kishan Chand vs. State of Haryana (2013) 2 SCC 502.
However, it would be noticed that judgment of the Hon'ble Supreme Court has been passed in peculiar facts and circumstances of the case as would be evident from paras 23 and 25 to 28 of the judgment, which read as under:-
of "23. Reverting to the facts of the present case, we have already noticed that both the Trial Court and the High rt Court have proceeded on the basis of substantial compliance and there being no prejudice to the accused, though clearly recording that it was an admitted case of total non-compliance. The statement of PW7 puts the matter beyond ambiguity that there was 'total non-
compliance of the statutory provisions of Section 42 of the Act'. Once, there is total non-compliance and these provisions being mandatory in nature, the prosecution case must fail.
25. Now, we will deal with a serious doubt that has been pointed out on behalf of the appellant in the recovery and the very presence of PW5, Subhash Seoran, at the time of recovery. The prosecution has not been able to establish this aspect of the case beyond reasonable doubt. According to PW7 after stopping the scooter of the accused at T-Point, Theh Banehra, he had sent for PW5 who had reached there and recovery was effected in his presence after giving option to the accused as required under Section 50 of the Act. We do not consider it necessary to ::: Downloaded on - 19/08/2023 20:32:21 :::CIS 11 deal with the other contentions including the plea taken with regard to compliance of Section 50 of the Act. We would only confine ourselves in regard to the doubt that .
has been created in recovery of the contraband from the custody of the accused.
26. PW5 in his statement had categorically stated that he had come to the site in his official jeep No. HR 09 7007 driven by DW1, Desraj and no other person was in the jeep. He claimed to have left the spot at about 11.15 a.m. of on 19th July, 2000. The accused had contended that he was falsely implicated, no independent witness was associated in the recovery or in the entire investigation and lastly that no recovery was effected and even PW5 rt has falsely deposed before the court. To support this contention, the accused had examined DW-1 Desraj, the driver of the car along with log book of Jeep No. HR 09 7007.
27. It will be interesting to note the examination in chief of this witness.
"I have brought the Log Book of Jeep no. HR09-7007. I am working as driver in Tehsil Office, at Guhla. In this Log Book at sr. no. 422 dated 19.7.2K, the vehicle was used by Naib Tehsildar from 12.30 P.M. to 7 P.M. and it was used in the area of Kamehri, Baupur, Gagarpur, Harnoli, Landaheri and the beginning of journey, the reading of speedometer was 85056 and closing of the journey was 85173. Total numbers covered 117 kilometers. The Naib Tehsildar was Sh. Batti Sahib, of Guhla. Except this journey, the said vehicle has not gone anywhere. I had not gone with Sh. Subhash Seoran, the then Tehsildar at the area of village Theh Banehra at its T-point or in that area. Copy of entry in the Log book is Ex. D1, nor I went in this vehicle with Tehsildar Sh. Subhash Seoran in the area of village Bhagal or at the turn of vill. Theh Banehra. The entry of ::: Downloaded on - 19/08/2023 20:32:21 :::CIS 12 the movement of the vehicle is definitely recorded in the Log book. It is correct that I had not gone anywhere with Tehsildar Guhla Sh. Subhash Seoran on 19.7.2000.
It is incorrect to suggest that the entries in the Log Book has not .
been made correctly and that every movements of the vehicles are not mentioned in this log book, rather it has been made later on as per convenience of the driver. It is incorrect to suggest that on the alleged day, i.e. 19.7.2000, the vehicle was used by the Tehsildar Sh. Subhash Seoran and I was also with him. It is further incorrect that on 19.7.2000, I had visited the of area of village Bhagal at the turning of vill. Theh Banehra along with Tehsildar Subhash Seoran in the aforesaid jeep."
28. In his cross-examination, except the suggestion that every movement of the vehicles is not entered in the log rt book and that the vehicle was used by PW7 on that day, which suggestion he categorically denied, no other question was put to this witness. One has no reason to disbelieve the statement of DW1 particularly when he produced the log book maintained in normal course of business. The log book showed a clear entry at serial no. 422 dated 19th July, 2000 where the vehicle in question was stated to be used by Mr. Bhatti, Naib Tehsildar, from 12.30 p.m. to 7.00 p.m. and was driven for 117 kms.
PW5, Tehsildar-cum-Executive Magistrate, in fact, did not use the official vehicle on that day as per the log book.
The witness even gave the exact reading of the meter of the vehicle which showed that it was driven for 117 kilometers on that date by the Naib Tehsildar, not even anywhere near to the area where the accused is alleged to have been apprehended It was also stated that except that journey, the vehicle had gone nowhere. He specifically stated that he had never taken PW5 to the ::: Downloaded on - 19/08/2023 20:32:21 :::CIS 13 place in question. Once, the statement of this witness is examined with the statement of PW7, that he did not associate any private person, independent witness in the .
recovery or in the entire process of investigation and that he did not even record such a fact in this proceedings casts a shadow of doubt over the case of the prosecution. Total non-compliance of Section 42, non-involvement of any independent witness at any stage of the investigation and the presence of PW5 at the spot being so very of doubtful, thus, compel this Court to hold that the prosecution has failed to prove its case beyond reasonable doubt.
19rt It needs to be noticed that PW3 in his deposition before the Court has categorically stated that videography and photography of the proceedings of the spot had been conducted by him with his mobile. He has also proved on record photographs, Ext. PW3/A-1 to Ext. PW3/A-3, which have been taken on the spot, but the appellant has not bothered to cross-
examine this witness save and except to put a general suggestion that no videography and photography was conducted by the witness on the spot.
20 Testimonies of DW1 and DW2 apparently are false given the fact that the prosecution has been able to prove its case beyond reasonable doubt. DW1 and DW2 otherwise have not been able to establish the defence taken by the appellant ::: Downloaded on - 19/08/2023 20:32:21 :::CIS 14 and in case the appellant had been implicated, as alleged, then under normal circumstances, he would have not kept quiet and .
would have made every endeavour to bring this fact to the notice of the local authorities or to the knowledge of higher ups in the police department and would have possibly even approached the Court. Moreover, there is overwhelming evidence led by the prosecution and there is nothing on record of really to prove or establish the presence of the appellant in the house of DW2, except bald statements of DW1 and DW2, which rt are worthy of no credence.
21 Apart from above, mere non-association of the independent witness in the background of the case is not at all fatal to the prosecution case. The mere fact that the case of the prosecution is based on official witnesses does not mean that the same should not be believed. In taking this view, we are duly supported by the judgment of the Hon'ble Supreme Court in Jarnail Singh vs. State of Punjab (2011) 3 SCC 521.
22 In the aforesaid judgment, the Hon'ble Supreme Court held that merely because prosecution did not associate any independent witness would not necessarily lead to conclusion that the accused was falsely implicated. The ::: Downloaded on - 19/08/2023 20:32:21 :::CIS 15 evidence of the official witnesses cannot be distrusted and disbelieved merely on account of their official status.
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23 The judgment in Jarnail Singh's case (supra) was thereafter affirmed by Three-Judge Bench of Hon'ble Supreme Court initially in Surinder Kumar vs State of Punjab (2020) 2 SCC 563 and thereafter by another Three-Judge Bench of the Hon'ble Supreme Court in Rizwan Khan vs. State of of Chattisgarh (2020) 9 SCC 627, wherein it was observed as under:- rt
12. It is settled law that the testimony of the official witnesses cannot be rejected on the ground of non- corroboration by independent witness. As observed and held by this Court in catena of decisions, examination of independent witnesses is not an indispensable requirement and such non-examination is not necessarily fatal to the prosecution case, [see Pardeep Kumar (supra)].
13. In the recent decision in the case of Surinder Kumar v. State of Punjab, (2020) 2 SCC 563, while considering somewhat similar submission of non examination of independent witnesses, while dealing with the offence under the NDPS Act, in paragraphs 15 and 16, this Court observed and held as under:
"15. The judgment in Jarnail Singh v. State of Punjab (2011) 3 SCC 521, relied on by the counsel for the respondent State also supports the case of the prosecution. In the aforesaid judgment, this Court has held that merely because prosecution did not examine any independent witness, would not necessarily lead to conclusion that the accused was falsely implicated. The ::: Downloaded on - 19/08/2023 20:32:21 :::CIS 16 evidence of official witnesses cannot be distrusted and disbelieved, merely on account of their official status.
16. In State (NCT of Delhi) v. Sunil, (2011) 1 SCC 652, it was held as under: (SCC p. 655) "It is an archaic notion that actions .
of the police officer should be approached with initial distrust. It is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law, the presumption should be the other way round. That official acts of the police have of been regularly performed is a wise principle of presumption and recognised even by the legislature.24
rt Similar reiteration of law can be found in subsequent judgments of the Hon'ble Supreme Court in Guru Dutt Pathak vs. State of Uttar Pradesh (2021) 6 SCC 116 and Kallu Khan vs. State of Rajasthan AIR 2022 SC 50 25 Applying the law laid down regarding the evidence of the official witnesses to the facts of the case in hand, as referred to above, we are of the opinion that the police officials are found to be reliable and trustworthy and no error was committed by the learned Special Judge in convicting and sentencing the appellant relying upon deposition of these police officials.
26 As a last ditch effort, learned senior counsel for the appellant would argue that the appellant at the time of arrest ::: Downloaded on - 19/08/2023 20:32:21 :::CIS 17 was 44 years old and he has now undergone half of the sentence, therefore, lenient view be taken and the sentence be .
considerably reduced.
27 However, we are not inclined to accept the request, more particularly, bearing in mind the objects and reasons of the Principal Act as also the Amended Act, 2001. However, this Court cannot ignore the menace of drug that is so rampant in of this part of the Country and required to be curbed with heavy hand. It has to be borne in mind that the NDPS Act had been rt specifically framed to curb the menace of drug trafficking. Its provisions provide for minimum punishment and in certain cases enhanced punishment also. The provisions of this Act were a departure from the ordinary law since the ordinary law was found to be inadequate and not sufficiently effective to deal with the special class of offences relating to the narcotic drugs and psychotropic substances. The legislature, therefore, made special provisions which can in certain respect be said to be harsh, created a special forum for the speedy disposal of such cases, provided for raising a presumption of guilt, placed extra restrictions in regard to the release of the offender on bail and made suitable changes in the procedure with a view to achieving its objects.::: Downloaded on - 19/08/2023 20:32:21 :::CIS 18
28 Having regard to the oral as well documentary evidence, we are in agreement with the findings recorded by the .
learned Special Judge. From the evidence on record, the prosecution has proved the guilt of the appellant beyond reasonable doubt and the conviction and sentence imposed is in inconformity with the provisions of law and evidence on record, thus no interference is called for, more particularly, of when such findings do not suffer from any perversity and illegality. rt 29 In view of aforesaid discussions and for the reasons stated hereinabove, we find no merit in the instant appeal and the same is accordingly dismissed, so also the pending application (s), if any.
(Tarlok Singh Chauhan) Judge (Ranjan Sharma) 16.8.2023 Judge (pankaj) ::: Downloaded on - 19/08/2023 20:32:21 :::CIS