Himachal Pradesh High Court
Sanjeev Kumar vs Of on 18 November, 2015
Bench: Rajiv Sharma, Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 166 of 2015.
Reserved on: 6th November, 2015.
.
Date of Decision : 18th November, 2015.
Sanjeev Kumar .....Appellant.
Versus
of
State of Himachal Pradesh .....Respondent.
Coram
rt
The Hon'ble Mr. Justice Rajiv Sharma, Judge. The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting? Yes.
For the Appellant: Mr. N.K. Thakur, Senior Advocate with Mr. Rahul Verma, Advocate.
For the Respondent: Mr. P.M. Negi, Deputy Advocate General.
____________________________________________ Sureshwar Thakur, Judge The instant appeal is directed against the judgment of the learned Special Judge-III, Kangra at Dharamshala, District Kangra, Himachal Pradesh, rendered on 13.03.2015 in Session Case No. 4-J/VII/2014, whereby, the learned trial Court convicted the accused for his having committed an offence ::: Downloaded on - 15/04/2017 19:21:42 :::HCHP 2 punishable under Section 21 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as "NDPS Act") and sentenced him to undergo rigorous imprisonment for .
10 years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, sentenced him to suffer rigorous imprisonment for two years.
2. The facts relevant to decide the instant case are of that on 16.07.2013 HC Sanjeev Walia, the Investigating Officer, SIU was present at village Sihal at 2.15 P.M. along with H.C. rt Kuldeep Kumar, Constable Ashish Kumar, Constable Kujljeet Singh and Drugs Inspector Ashish Raina when a secret information was received that the accused has kept contraband such as Spasmo Proxyvon and Parvon Spas for sale in his rented store at village Dhameta and if raided, huge quantity of contraband can be recovered. On this, information under Section 42(2) of the NDPS Act was sent to DSP Jawali. The police party headed by H.C. Sanjeev Walia proceeded to village Dhameta to raid the store of the accused. Pradhan Gram Panchayat, Nirjala Devi and Ward Panch Kewal Krishan were also associated in the raiding party. The store of the accused was found locked and the accused was called and asked to ::: Downloaded on - 15/04/2017 19:21:42 :::HCHP 3 open the store. The SDPO, Jawali, Dharampal also reached the spot. During the search, one carton was recovered from the store and on checking the same, 38 boxes of Parvon Spas .
containing 7600 capsules and 8 boxes of Spasmo Proxyvon containing 1142 capsules were recovered. The Investigating Officer filled in NCB form in triplicate. The case property was taken into possession vide recovery memo Ex.PW1/A and was of sealed in a parcel with twenty seals of seal impression 'V'. After obtaining specimen seal impression on a separate piece of rt cloth, seal after use was handed over to witness Nirjala Devi.
The Investigating Officer prepared rukka and same was sent to Police Station, Fatehpur through C. Kuljeet Singh for registration of a case upon which formal FIR was registered.
During the Investigation, Investigating Officer prepared the site plan and recorded the statements of the witnesses. Special report was submitted to DSP, Jawali. The accused was arrested. During the investigation, accused could not produce any permit for possessing the aforesaid contraband. The case property was resealed by SI Tilak Raj, SHO, Police Station, Fatehpur, with ten seals of seal impression 'N' and to this effect reseal certificate was also prepared. The case property was ::: Downloaded on - 15/04/2017 19:21:42 :::HCHP 4 sent to SFSL, Junga for chemical analysis. On receipt of SFSL Report, the samples were found to be that of Dextropropoxyphene Hydrochloride Capsules.
.
3. On conclusion of the investigation, into the offence, allegedly committed by the accused, report under Section 173 of the Code of Criminal Procedure was prepared and filed in the Court.
of
4. The accused was charged by the learned trial Court for his having committed an offence under Section 21 of the rt NDPS Act. In proof of the prosecution case, the prosecution examined 15 witnesses. On conclusion of recording of the prosecution evidence, the statement of the accused under Section 313 of the Code of Criminal Procedure was recorded by the Court, in which the accused claimed innocence and pleaded false implication. He chose not to not lead evidence in defence.
5. On an appraisal of the evidence on record, the learned trial Court, returned findings of conviction against the accused/appellant.
6. The convict/appellant is aggrieved by the judgment of conviction recorded by the learned trial Court. The learned defence counsel has concertedly and vigorously contended that ::: Downloaded on - 15/04/2017 19:21:42 :::HCHP 5 the findings of conviction recorded by the learned trial Court are not based on a proper appreciation of the evidence on record, rather, they are sequelled by gross mis-appreciation of material .
on record. Hence, he contends that the findings of conviction be reversed by this Court in the exercise of its appellate jurisdiction and be replaced by findings of acquittal.
7. On the other hand, the learned Deputy Advocate of General has with considerable force and vigour, contended that the findings of conviction recorded by the Court below are rt based on a mature and balanced appreciation of evidence on record and do not necessitate interference, rather merit vindication.
8. This Court with the able assistance of the learned counsel on either side, has, with studied care and incision, evaluated the entire evidence on record.
9. The accused is alleged to have been found in exclusive and conscious possession of 8742 capsules of Parvon Spas and Spasmo Proxyvon while his having concealed/kept them in his shop/store. The official prosecution witnesses have deposed in tandem and in harmony in proof of each of the links in the chain of circumstances commencing from the ::: Downloaded on - 15/04/2017 19:21:42 :::HCHP 6 proceedings relating to search, seizure and recovery of contraband from the alleged conscious and exclusive possession of the accused till the consummate link comprised in .
the rendition of an opinion by the FSL on the specimen parcel sent to it for analysis, hence portraying proof of unbroken and un-severed links, in the entire chain of circumstances, as such, it is argued that when hence the prosecution case stood of established, it would be legally unwise for this Court to acquit the accused. Besides when the testimonies of the official rt witnesses unravel the factum of theirs being bereft of any inter se or intra se contradictions for belittling their creditworthiness, consequently they too are contended to enjoy credibility.
10. Apparently, the prosecution case gathers strength from the depositions of the official witnesses especially when they have deposed qua the genesis of the prosecution version in a consistent, uniform and harmonious manner.
Consequently, their depositions acquire a hue of veracity.
11. Contraband Ex.P-2 was recovered under recovery memo Ex.PW1/A. Its recovery was effected from a store taken on monthly rent of Rs.500/- by the accused from PW-15 Shri Desh Raj. Certificate Ex.PW12/A issued by PW-15 besides, ::: Downloaded on - 15/04/2017 19:21:42 :::HCHP 7 proven by him consolidates an inference of the accused having taken on rent a shop from PW-15 which was used by him as a store wherefrom recovery of contraband Ex.P-2 under recovery .
memo Ex.PW1/A stood effected. The depositions of the officials witnesses are firm and categorical in clinching the fact of Ex.P-2 having stood recovered under memo Ex.PW1/A from the shop taken on rent by the accused from PW-15 and which of stood used as a store by him. The accused holding tenancy of the store wherefrom recovery of contraband Ex.P-2 was rt effected nails a conclusion of his being in exclusive and conscious possession thereof. As a corollary, with the official witnesses deposing with intra se consistency in their respective examinations-in-chief qua the factum of its recovery therefrom, hence when their respective depositions comprised in their examinations-in-chief are bereft of any intra se contradictions, as such, their testimonies qua the factum of recovery of Ex.P-2 under recovery memo Ex.PW1/A from the store held/possessed exclusively by the accused are construable to be hence both trustworthy as well as credible. Apart therefrom, with no occurrence of any inter se contradictions in the testimonies of the official witnesses comprised in their respective ::: Downloaded on - 15/04/2017 19:21:42 :::HCHP 8 examinations-in-chief vis-a-vis their depositions comprised in their respective cross-examinations lends impetus to an inference of their testimonies inspiring confidence besides, .
being trustworthy. Moreover, the effect of their respective depositions comprised in their examinations-in-chief being also bereft of any contradictions with their previous statements recorded in writing qua the occurrence is of theirs as a corollary of not giving leverage for any sprouting therefrom of an inference of their testimonies on oath being ridden with any taint of rt improvements or embellishments. In sequel this Court is constrained to with aplomb amass an inference of their testimonies being amenable to theirs being imputed implicit reliance, for forming thereupon a conclusion qua the guilt of the accused.
12. No capital can be drawn by the defence from the factum of both independent witnesses to the apposite proceedings depicted in Ex.PW1/A as stood initiated and concluded at the site of occurrence having while standing examined as PWs resiled, reneged besides, having not supported the prosecution case. The reason for this Court to not even in the face of PW-1 and PW-2 not supporting the ::: Downloaded on - 15/04/2017 19:21:42 :::HCHP 9 prosecution case oust the tenacity of their respective depositions, arises from the factum of theirs having admitted their signatures on Ex.PW1/A which records the factum of Ex.P-
.
2 having come to be recovered thereunder from the store held as a tenant by the accused. Necessarily with theirs having admitted their signatures on Ex.PW1/A, in sequel the recovery thereunder of Ex.P-2 from the store held by the accused as a of tenant renders workable against them the legal fetter or embargo constituted in Sections 91 and 92 of the Indian rt Evidence Act, whose provisions stand extracted hereinafter, whereby they are enjoined to not depose at variance with the recorded recitals of Ext.PW.1/A admittedly signatured by each, besides concomitantly the effect, if any of theirs having reneged therefrom would not undermine the legal efficacy of the recorded recitals in Ext.PW.1/A, especially given the sway of the legal embargo constituted therein and its interdicting them to depose in variance with the recorded recitals of Ex.PW1/A, deposed by each to have been signatured by them, renders hence their testimonies in variance to the recorded recitals of Ex.PW1/A to be inconsequential, rather as a corollary fastens sanctity to the apposite recitals comprised in Ext.PW-
::: Downloaded on - 15/04/2017 19:21:42 :::HCHP 101/A. Moreover, hence their testimonies on oath at variance with the recorded recitals in Ext.PW.1/A are obviously discardable nor also it can be deduced therefrom that the prosecution case .
suffers erosion for want of oral corroboration to it by PW-1 and PW-
2. The provisions of Sections 91 and 92 of the Indian Evidence Act, read as under:-
"91. Evidence of terms of contracts, grants and other dispositions of property reduced to form of documents.-
of When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any rt matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained.
92. Exclusion of evidence of oral agreement.:- When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms:-
Proviso (1).- Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, ::: Downloaded on - 15/04/2017 19:21:42 :::HCHP 11 want of capacity in any contracting party, [want of failure] of consideration, or mistake in fact or law; Proviso (2).- The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may .
be proved. In considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document:
Proviso (3).- The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, of grant or disposition of property, may be proved: Proviso(4).- The existence of any distinct subsequent oral agreement to rescind or modify any such contract, rt grant or disposition of property,may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents: Proviso (5). Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be proved:
provided that the annexing of such incident would not be repugnant to, or inconsistent with, the express terms of contract:
Proviso(6).- Any fact may be proved which shows in what manner the language of a document is related to existing facts."
Concomitantly for reiteration, their depositions on oath in contradiction to or at variance with the recorded recitals of ::: Downloaded on - 15/04/2017 19:21:42 :::HCHP 12 Ex.PW1/A are discardable arising from the factum of theirs being statutorily debarred to depose in contradiction thereto especially when signatures whereon of PW-1 and PW-2 stand .
admitted by both rather renders Ext.PW.1/A to be clothed with an aura of veracity, with a concomitant deduction of the factum recorded therein of Ex.P-2 having been thereunder recovered from the store held by the accused as a tenant gaining of immense probative vigour. As a corollary, it renders inconsequential the effect, if any, of theirs reneging or resiling rt from the recorded recitals qua the apposite proceedings comprised in Ex.PW1/A. In aftermath, they are to be construed to be rather lending support or corroboration to the testimonies of the official witnesses qua the factum comprised in Ex.PW1/A. Consequently, when the testimonies of the official witnesses have been construed for the reasons recited hereinabove to be inspiring confidence, for forming thereupon a conclusion qua the guilt of the accused, they acquire added probative leverage for sustaining the prosecution case moreso when both independent witnesses to the apposite proceedings have been for the reasons afore-stated construed to be corroborating their testimonies.
::: Downloaded on - 15/04/2017 19:21:42 :::HCHP 1313. Since, it was a case of prior information, the Investigating Officer, PW-14 H.C. Sanjeev Walia was enjoined to mete compliance with the mandatory statutory conditions .
enshrined in Section 42(2) of the NDPS Act requiring him to reduce the prior information qua the accused dealing in contraband into writing, thereafter his with utmost promptitude transmitting it to his superior officer. Compliance with the of afore referred mandatory/statutory condition fastened by Section 42(2) of the NDPS Act upon the Investigating Officer rt stands proven by PW-8 C. Ashish Kumar inasmuch as his deposing qua the factum of preparation of Ex.PW7/A by the Investigating Officer in compliance with the provisions of Section 42(2) of the NDPS Act and its also containing the prior information qua the factum of the accused consciously and exclusively holding unauthorized possession of contraband.
Apart therefrom, he has also proven the factum of its having been delivered by him in the office of SDPO, Jawali with H.C. Kuldeep Singh. However, given the factum of the Dy. S.P. being then unavailable, the latter having been telephonically apprised qua the aforesaid factum by H.C. Bhoop Singh also manifests evidence qua substantial compliance by the ::: Downloaded on - 15/04/2017 19:21:42 :::HCHP 14 Investigating Officer with the provisions of Section 42(2) of the NDPS Act. Furthermore, PW-8 has also proven the factum of his having carried Special report Ex.PW7/B to the office of .
SDPO, Jawali on 17.07.2013.
14. Abstract of Malkhana register, Ex.PW5/B unflinchingly proves the factum of the case property along with NCB form in triplicate and samples seals hence having come to of be deposited therein. Parcel Ex.P-1 containing contraband Ex.
P-2 was under road certificate No.48/21 comprised in Ex.PW5/A rt carried by PW-6 C. Surinder Singh to FSL, Junga, who after depositing it with the FSL concerned handed over receipt of its deposit by him with the latter, to the MHC. The tenacity of the recitals in Ex.PW5/A, the road certificate whereunder case property was transmitted to FSL, Junga through PW-6 C. Surinder Singh has remained unimpeached. In sequel with the recitals in Ex.PW5/A of 8742 capsules of Parvon Spas and Spasmo Proxyvon having been handed over to PW-6 C. Surinder Singh for onward transmission to FSL Junga besides of NCB form in triplicate, sample seals and copy of recovery memo accompanying it and with theirs as portrayed in the report of the FSL concerned comprised in Ex.PA having come to received ::: Downloaded on - 15/04/2017 19:21:42 :::HCHP 15 by it in the manner recited in Ex.PW5/A, overcomes any inference of any intra se incompatibility existing in recitals in Ex.PW5/A vis-a-vis recitals in EX.PA. Necessarily, besides when .
Ex.PA, the report of FSL, Junga underscores in tandem with the recitals in Ex.PW5/A of all items/material disclosed therein to be accompanying it, having stood deposited with it by PW-6, as also with the seals borne on the parcels sent to it for of examination by the police on comparison by it with the sample seals accompanying Ex.PW5/A not manifesting any palpable rt incongruity, both in numbering as well as qua the English alphabet borne therein, necessarily when hence no ambiguity on intra se comparison thereof by the FSL stands unearthed qua the number of seals borne on the sample parcels besides qua the English alphabet borne thereon constrains an aplomb conclusion of the report of FSL Ex.PA being linkable to contraband Ex.P-2 recovered under memo Ex.PW1/A. More so when the seals borne on parcel Ex.P-1 have been disclosed in Ex.PA to have been on its receipt at FSL found intact.
15. For the reasons which have been recorded hereinabove, this Court holds that the learned trial Court has appraised the entire evidence on record in a wholesome and ::: Downloaded on - 15/04/2017 19:21:42 :::HCHP 16 harmonious manner apart therefrom the analysis of the material on record by the learned trial Court does not suffer from any perversity or absurdity of mis-appreciation and non .
appreciation of the evidence on record, rather it has aptly appreciated the material available on record.
16. Hence, the appeal is dismissed and the impugned judgment of the learned trial Court is affirmed and maintained.
of Records be sent back.
(Rajiv Sharma)
rt Judge
(Sureshwar Thakur)
th
18 November, 2015 Judge.
(jai)
::: Downloaded on - 15/04/2017 19:21:42 :::HCHP