Himachal Pradesh High Court
State Of H.P vs Balkrishan on 27 February, 2017
Bench: Dharam Chand Chaudhary, Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 165 of 2011 Reserved on : 11.11.2016 .
Decided on: 27.2.2017
State of H.P. .......Appellant
Versus
Balkrishan ......Respondent
of
Coram
The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge. The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
rt Whether approved for reporting?1 Yes.
For the appellant: Mr. M.A.Khan and Mr. Virender Verma, Addl. A.G For the respondent: Mr. Ramesh Sharma, Advocate.
Dharam Chand Chaudhary, Judge.
Learned Special Judge, Fast Track Court, Chamba has acquitted the respondent (hereinafter referred as to the 'accused') of the charge under Section 20 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the 'NDPS Act' in short) vide judgment dated 24.01.2011 passed in Sessions Trial No. 15/2010, which is under challenge before this Court in the present appeal.
1Whether the reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 21:56:33 :::HCHP 22. The legality and validity of the impugned judgment has been questioned on the grounds inter-alia .
that learned trial Court has not appreciated the evidence available on record in its right perspective and to the contrary, based its findings on hypothesis, surmises and conjectures. The testimony of prosecution witnesses of has been discarded for untenable reasons, particularly when they had no enmity with the accused. The rt reasoning as given is erroneously wrong and unsustainable. The cogent and reliable evidence having come on record by way of testimony of PW-1, PW-2 and also the I.O. PW-9 has erroneously been brushed aside.
Minor contradictions in the statements of prosecution witnesses have been given undue weightage while discarding the prosecution case and recording findings of acquittal. The recovery of charas weighing 4.500 kilograms from the exclusive and conscious possession of the accused is satisfactorily proved from the evidence produced by the prosecution. The evidence that PW-9 has conducted the investigation with the help of mega light, which was held by Constable Rajesh is also ::: Downloaded on - 15/04/2017 21:56:33 :::HCHP 3 erroneously brushed aside. The evidence should have been read as a whole to record the findings of .
conviction and a sentence or two from the statements of witnesses should have not been picked up to discard the prosecution case against the accused. The witnesses PW-1 HC Narender Singh, PW-2 HHC Kewal Krishan and of the I.O. PW-9 Naseeb Singh though were official witnesses, however, on perusal of their testimony, they all rt supported the prosecution case on all material aspects.
It is with these submissions in the grounds of appeal, the impugned judgment has been sought to be set aside and the accused convicted of the charge under Section 20 of the NDPS Act framed against him.
3. In order to decide the fate of this appeal, it is desirable to take note of the facts in a nut-shell. On 28.1.2010, ASI Naseeb Singh, PW-9 has entered rapat No. 6 Ext. PW-7/B in daily diary at 8.30 P.M. and accompanied by HC Virender Singh (PW-1), HHC Kewal Krishan (PW-2), Constable Rajesh Kumar and Constable Yakub Mohammad proceeded for patrolling towards Sundla and Koti area. Around 12.05 a.m (mid night), on ::: Downloaded on - 15/04/2017 21:56:33 :::HCHP 4 their way to police station and while at Kotipul, they noticed accused walking down through a path towards .
Kotipul side. PW-9 alighted from the vehicle along with other police officials. The accused on seeing them got frightened and tried to run away towards Kotipul side.
He allegedly was over powered by him with the help of of other police officials. He was found carrying a black coloured bag Ext. P-2 on his shoulder. On suspicion that rt he may be carrying some narcotic drug or psychotropic substance in the bag, he was apprised orally as well as in writing about his legal right qua his search before a nearby gazetted officer or Magistrate. Memo Ext. PW-
1/A was prepared in this regard. The accused allegedly consented for being searched by the police present on the spot. On this, PW-9 and other police officials had offered their search to the accused first. Nothing incriminating, however, was recovered from them.
Memo Ext. PW-1/B was prepared in this regard. It is thereafter, search of the bag being carried by the accused was conducted by PW-9. A polythene packet Ext. P-3 was found kept in the bag. On further search of ::: Downloaded on - 15/04/2017 21:56:33 :::HCHP 5 the said packet, charas in the shape of sticks and balls was found kept therein. The same was weighed with .
scales and weights available in the I.O. kit. The recovered charas was found to be 4.500 kilograms in weight.
4. The recovered charas was put in the same of polythene packet Ext. P-3. Ext. P-3 thereafter was put in the same black coloured bag. Ext. P-2. The bag and rt parcels were sealed with four seals of impression 'N' and taken in possession vide seizure memo Ext. PW-1/E. Specimen of seal Ext. PW-1/C was obtained on a piece of cloth separately. NCB forms Ext. PW-1/D were also filled in triplicate on the spot. Seal 'N' after its use was handed over to PW-1 HC Varinder Singh.
5. Rukka Ext. PW-9/A was prepared by the I.O.
ASI Naseeb Singh. The same was sent by hand to police station, Sadar, Chamba through PW-2 HHC Kewal Krishan for registration of FIR against the accused.
Consequently, FIR Ext. PW-8/A was registered in the police station. Copy of rukka Ext. PW-9/A sent to S.P. Chamba through PW-2 was received by the said officer ::: Downloaded on - 15/04/2017 21:56:33 :::HCHP 6 under his signatures. The spot map Ext. PW-9/B was prepared. The accused was apprised about the .
offence he committed and the provisions of sentence prescribed therefor vide memo Ext. PW-1/F and arrested.
His personal search was conducted vide memo Ext. PW-
1/D. He thereafter was brought to police station Sadar of Chamba along with the case property and produced before ASI/SHO Mukesh Kumar, PW-8. The said witness rt had re-sealed the parcel containing the recovered charas with seal 'O'. Its specimen Ext. PW-4/A was obtained on the back of sample seal Ext. PW-1/C. Its facsimile was also affixed on NCB forms Ext. PW-1/D. The entries to this effect were made in daily diary vide rapat Ext. PW-3/D. PW-8 thereafter deposited the case property along with NCB forms in triplicate, sample of seals 'N' and 'O' and seizure memo with Pawan Kumar, PW-3, the then MHC Police Station, Chamba at 4.15 p.m. PW-3 had entered the case property entrusted to him by PW-8 along with sample of seals, NCB forms, seizure memo etc. in the malkhana register vide entries Ext. PW-
3/A. He forwarded the case property to Forensic ::: Downloaded on - 15/04/2017 21:56:33 :::HCHP 7 Science Laboratory along with sample of seals, NCB forms and seizure memo through LHC Joginder Singh .
vide RC Ext. PW-3/B. The I.O. PW-9 has prepared the special report Ext. PW-5/B and it was sent to S.P. Chamba through Constable Rajesh Kumar vide memo Ext. PW-
7/C. The said Constable after delivery of the special of report in the office of S.P. Chamba entered the rapat Ext. PW-3/C qua his arrival in the police station. On rt receipt of the report of chemical examiner Ext. P-X and completion of the investigation challan was prepared and filed in the Court.
6. Learned Special Judge on appreciation of the prosecution case and the evidence collected by the investigating agency has prima-facie held the accused having committed the offence punishable under Section 20 of the NDPS Act. Charge against him was, therefore, framed accordingly.
7. On appreciation of the evidence produced by the prosecution, learned Special Judge has concluded that the evidence as has come on record by way of the testimony of official witnesses being highly ::: Downloaded on - 15/04/2017 21:56:33 :::HCHP 8 contradictory and inconsistent cannot be relied upon to record the findings of conviction against the accused.
.
He, as such, was given benefit of doubt and consequently acquitted of the charge framed against him.
8. Mr. M.A. Khan, learned Additional Advocate of General has vehemently argued that the evidence as has come on record by way of the testimony of official rt witnesses is as much good as that of an independent person. Learned trial Court, however, has erroneously brushed aside the same. Mr. Khan while taking us to the statements of material prosecution witnesses i.e. HC Virender Singh PW-1, HHC Kewal Krishan PW-2 and also I.O. ASI Naseeb Singh PW-9 has strenuously contended that the statements they made are consistent on all material aspects of the prosecution case. The contradictions, if any, according to Mr. Khan are not of such a nature to belie the recovery of huge quantity of charas weighing 4.500 kilograms from the accused. With the passage of time, parrot like version of the prosecution case is not expected from the witnesses. Mr. ::: Downloaded on - 15/04/2017 21:56:33 :::HCHP 9 Khan, as such, has urged that the present is a fit case where while quashing the impugned judgment, the .
accused may be convicted and sentenced for the commission of offence he committed under Section 20 of the NDPS Act.
9. On the other hand, Mr. Ramesh Sharma, of learned defence counsel while repelling the arguments addressed on the appellant-State has argued that the rt learned trial Court has not committed any illegality or irregularity in discarding the prosecution evidence, highly contradictory in nature and inconsistent. The close scrutiny of the evidence as has come on record by way of the testimony of prosecution witnesses none else but the police officials, according to Mr. Sharma leave no manner of doubt that the prosecution has failed to prove its case against the accused beyond all reasonable doubt. He, as such, is stated to be rightly acquitted of the charge framed against him.
10. The present is a case where the plea of accused that option under Section 50 of the Act has not been given to him in accordance with law stands ::: Downloaded on - 15/04/2017 21:56:33 :::HCHP 10 rejected by learned trial Judge, as is apparent from the perusal of the impugned judgment. This part of the .
judgment being not assailed any further has therefore, attained the finality.
11. In the given facts and circumstances and the arguments addressed on both sides, the questions that;
of firstly it was not possible for the police party to associate the independent witnesses to witness the search and rt seizure despite efforts made and on that count, the proceedings vitiated and secondly, the evidence as has come on record by way of testimony of official witnesses is neither dependable nor reliable, in view of the inconsistencies and contradictions taken note of by learned trial Court in the impugned judgment arises for our consideration in this appeal.
12. In order to decide the questions ibid, the reappraisal of the evidence comprising oral as well as documentary is required. However, before that it is desirable to note that an offence committed under the Act is not only heinous but serious in nature also. An offence under the Act is not against an individual but ::: Downloaded on - 15/04/2017 21:56:33 :::HCHP 11 against the Society, as a whole, because illicit trafficking of drugs not only affects a particular individual but the .
public at large and in particular our young generation.
The NDPS Act is a piece of social legislation enacted with the sole idea to curb illicit trafficking of drugs. A case registered under the Act, therefore, needs consideration, of keeping in mind the above factors. At the same time, keeping in view there being provision of deterrent rt punishment against an offender, if ultimately held guilty, the provisions contained under the act to safeguard an offender from conviction and sentence also need to be looked into thoroughly so that any innocent person may not be convicted and sentenced.
13. The statute casts a duty upon the prosecution not only to prove beyond all reasonable doubts the commission of an offence by an offender, but additionally the compliance of various provisions mandatory in nature enshrined thereunder. Thus, law casts a duty on the Courts, seized of the case registered under the Act, to deal with it with all circumspection and caution and before recording the findings of conviction ::: Downloaded on - 15/04/2017 21:56:33 :::HCHP 12 against an offender to satisfy itself about the compliance of procedural requirements and also the availability of .
cogent and reliable evidence connecting the accused with the commission of the offence.
14. It is also deemed appropriate to point out that the recovery of narcotic drug or psychotropic of substance from the conscious and physical possession of the accused is sine qua non for recording the findings of rt conviction against him. We are drawing support in this regard from the judgment of a Division Bench of this Court in Criminal Appeal No. 71 of 2013, titled State of Himachal Pradesh V. Karnail Singh @ Kaila, decided on 8th September, 2016. The Division Bench by placing reliance on the judgment of Bombay High Court in Rubyana alias Smita Sanjib Bali V. State of Maharashtra and others, 1996 Crl. L.J. 148 has concluded that the possession must be conscious and intelligent and mere physical presence of the accused in proximity or even close to something incriminating is not sufficient to connect him with the commission of an offence of this nature.
::: Downloaded on - 15/04/2017 21:56:33 :::HCHP 1315. The present is a case of recovery of huge quantity of charas weighing 4.500 kilograms from the .
polythene packet Ext. P-3 being carried in a black coloured bag Ext. P-2 by the accused during odd hours i.e. 12.05 a.m. (mid night). As noticed supra, non joining of independent persons as witnesses and the of contradictions in the testimony of official witnesses taken note of in the impugned judgment have weighed rt heavily with learned trial Judge while acquitting the accused of the charge.
16. The joining of independent persons to witness the search and seizure is always in the interest of fair trial, however, one should not loose sight of the fact that independent persons are not available at all places and every time for being associated as witnesses by the investigating agency and that the testimony of official witnesses, if on close scrutiny inspire confidence, should be relied upon to bring guilt home to the accused. It is held by a Division Bench of this Court in Criminal Appeal No. 3 of 2013 titled Joga Singh V. State of Himachal Pradesh, decided on 7th July, 2016 while placing reliance ::: Downloaded on - 15/04/2017 21:56:33 :::HCHP 14 on the judgment of the Apex Court in Makhan Singh V. State of Haryana, (2015) 12 SCC 247. The relevant .
extract of the same reads as follows:
"......In peculiar circumstances of the case, it may not be possible to find out independent witnesses at all places and at all times. Independent witnesses of who live in the same village or nearby villages of the accused are at times afraid of to come and depose in favour of the prosecution. Though it is well settled rt that a conviction can be based solely on the testimony of official witnesses, condition precedent is that the evidence of such official witnesses must inspire confidence. In the present case, it is not as if independent witnesses were not available....."
17. The Apex Court in Girija Prasad vs. State of M.P., (2007) 7 SCC 625 has also held that the testimony of official witnesses is as much good as that of independent person, however, the same in the light of the ratio of this judgment is required to be examined with all circumspection and caution.
18. Be it stated that the I.O. has associated HC Virender Singh and Constable Yakub Mohammad as witnesses to witness the search and seizure. It is not the prosecution case that the efforts were made to associate the independent persons as witnesses, ::: Downloaded on - 15/04/2017 21:56:33 :::HCHP 15 however, no-one could be traced out due to odd hours or the spot an isolated place. The evidence as has .
come on record by way of rukka Ext. PW-9/A and other documentary evidence referred to hereinabove supported by the testimony of PW-1 and also PW-2 amply demonstrates that the accused was nabbed at of 12.05 a.m. (mid night) at Kotipul, which as per the spot map is an isolated place. No doubt, an effort was made rt by the defence to show that PWD/IPH department colony was at a distance of 10 meters from that place, besides a switch yard of electricity board was also situated nearby. Both PW-1 and PW-2 and for that matter PW-9 have stated in one voice that from the spot said colony was situated at a distance of 400-500 meters, whereas, switch yard at 500-600 meters. Meaning thereby that neither the colony nor switch yard were situated nearby to the place of recovery. Otherwise also, being odd hours, it was not possible to join anyone either from the colony or from the switch yard as an independent witness to witness the search and seizure.
Learned trial Judge was not justified in recording findings ::: Downloaded on - 15/04/2017 21:56:33 :::HCHP 16 that the prosecution witnesses firstly denied the suggestion given to them qua existence of PWD/IPH .
department colony and switch yard, however, in the same breath admitted that the colony and switch yard are situated there for the reason that they have denied the existence of colony and switch yard at a distance of of 10 meters and deposed that the same were at a distance of 400-500 and 500-600 meters respectively from rt that place. The testimony of PW-1 and PW-2 and also that of PW-9 has, therefore, been misconstrued and misread by learned trial Judge. Since in the light of the judgments of the apex Court in Makhan Singh's and Girja Prasad's case (supra), the testimony of official witnesses, if consistent and inspire confidence can be relied upon to bring guilt home to the accused.
Therefore, in the peculiar circumstances that it was an isolated place where the accused was nabbed and being odd hours, it was not possible for the I.O. to have associated some independent persons to witness the search and seizure, non-joining of independent witnesses is not fatal to the prosecution case for the reason that in ::: Downloaded on - 15/04/2017 21:56:33 :::HCHP 17 the considered opinion of this Court, the testimony of prosecution witnesses is consistent, hence dependable.
.
The contradictions for the reasons to be recorded hereinafter are not of such a nature that the same goes to the very root of the prosecution case. Learned trial Judge, therefore, was not justified in arriving at a of conclusion to the contrary that the I.O. had avoided to associate independent persons as witnesses intentionally rt to implicate the accused in the case in hand falsely.
19. The present being a case of recovery of huge quantity of charas i.e. 4.500 kilograms, it cannot be believed by any stretch of imagination that the same was planted on the accused. It is the accused who was apprehended, arrested and tried in the case in hand. It is proved so from the endorsement in his hand and signature on consent memo Ext. PW-1/A, whereas, his signatures on remaining documents, Ext. PW-1/B, Ext. PW-
1/E and also arrest memo Ext. PW-1/F as well as his personal search memo Ext. PW-1/G. It is not his case that he was not apprehended nor above documents contains his signatures. True it is that when the ::: Downloaded on - 15/04/2017 21:56:33 :::HCHP 18 incriminating circumstances appearing against him in the prosecution evidence were put to him in his .
statement recorded under Section 313 Cr.P.C. he has denied the same either being incorrect or for want of knowledge. He even has expressed his ignorance to his arrest in this case. Therefore, his denial and his conduct of to avoid answering such incriminating circumstances put to him in his statement under Section 313 Cr.P.C. leads to rt the only conclusion that the denial or his ignorance to the circumstances appearing against him in the prosecution case is a clever move to save him from his conviction. As a matter of fact, it was incumbent upon him to have atleast explained as to why he was arrested by the police and where he was arrested, had he not been present on the spot. His denial/ignorance to such incriminating circumstances lead to the only conclusion that he has suppressed material facts from the Court to save himself from his prosecution.
20. It is not the case of the accused that he was not apprehended by the police at Kotipul and his answer 'I do not know' to such circumstance appearing ::: Downloaded on - 15/04/2017 21:56:33 :::HCHP 19 against him in the prosecution evidence can conveniently be taken to arrive at a conclusion that it is .
he who was apprehended by the police during odd hours at 12.05 a.m. (mid night) and charas recovered from the bag he was carrying with him.
21. Now if coming to the contradictions in the of prosecution evidence, true it is that as per the version of HC Virender Singh PW-1, the police party stopped for a rt while at Sundla, whereas, as per that of PW-2 HHC Kewal Krishan at Surgani and no where else, whereas, according to the I.o. PW-9, they stopped at all places i.e. Koti, Badoh, Surgani and Sundla. We, however, failed to understand as to how this contradiction has discredited the prosecution story as learned defence counsel has not made any submission in this regard during the course of arguments. It is also not known as to how the recovery of charas weighing 4.500 kilograms from the bag Ext. P-2, the accused was carrying with him could be doubted.
22. Learned trial Judge has laid much emphasis on the time spent for conducting investigation as well as ::: Downloaded on - 15/04/2017 21:56:33 :::HCHP 20 reducing into writing various documents on the spot and concluded that the investigation was not conducted in .
the manner as claimed in the prosecution case.
Learned trial Judge on the basis of evidence as has come on record by way of testimony of PW-1 has noted that if the accused was interrogated for 10 minutes and of the consent memo scribed at 12.10 a.m., the time of scribing the same would have not been 12.32 a.m., rt however, no time of scribing the memo Ext. PW-1/A find mentioned thereon. While taking note of the statement of I.O. PW-9, if the memo Ext. PW-1/A was scribed in 20 minutes and personal search memo Ext. PW-1/B in another 20 minutes, 40 minutes were consumed in getting the said memos prepared. However, according to him, it took 12 minutes each in scribing of these memos. It has also been observed that in case the recovered charas was weighed in three rounds, it was not possible to complete weighing of charas, sealing the same in parcels and prepration of seizure memo in 30 minutes as stated by PW-9. Learned trial Court while taking note of the evidence as has come on record by ::: Downloaded on - 15/04/2017 21:56:33 :::HCHP 21 way of the testimony of PW-1 and PW-9 has concluded that the memo Ext. PW-1/A was scribed at 12.15 a.m. or .
12.20 a.m., whereas, the personal search memo Ext. PW-
1/B by 12.25 a.m. If 30 minutes were consumed in weighing the recovered charas and in resorting to sealing and sampling process, it was 1.25 a.m. by that of time. Rukka could have not been completed by 1.30 a.m. We, however, are not satisfied with such minute rt calculation of time spent for conducting investigation and preparation of various memos taken into consideration by learned trial Judge for the reason that accused was apprehended at 12.05 a.m. only 3-5 minutes were required for ascertaining as to where he was going during odd hours and his antecedents etc. Looking to the contents of personal search memo, the same could have been reduced into writing in 10 minutes i.e. by 12.20 a.m. The another memo Ext. PW-1/B could have also been prepared within next 15 minutes, that too, after conducting personal search of the police officials by the accused. This process, therefore, may have been completed by the I.O. by 12.30-40 a.m. The ::: Downloaded on - 15/04/2017 21:56:33 :::HCHP 22 search of the bag of the accused and recovery of charas may have taken 2-3 minutes, whereas, the .
sealing and sampling process 15-20 minutes. In all probability, the scribing of the seizure memo and also rukka could have possibly been done by 1.30 a.m. Otherwise also, there was no occasion to learned trial of Judge to have gone into all details meticulously for the reason that testimony of PW-1 and PW-9 qua variance of rt time 10-15 minutes is not going to make any difference and render the recovery of huge quantity of charas from the accused doubtful.
23. The inventory of articles lying in the I.O kit also weighed heavily with learned trial Judge. True it is that the witnesses PW-1 and PW-2 have stated that inventory of the articles lying in the I.O. kit was not prepared, however, it should not be taken to believe that I.O. had no kit with him nor he was having weight and scale for the reason that the I.O. as and when on patrol duty or leave the police station for conducting investigation of a case always takes with him the kit issued to him.
Therefore, when the recovered charas in this case was ::: Downloaded on - 15/04/2017 21:56:33 :::HCHP 23 produced in the trial Court, it cannot be inferred that the same was not weighed nor found to be 4.500 kilograms.
.
24. The rukka as per prosecution case was handed over to PW-2 at 1.30 a.m. for being taken to the police station for registration of FIR and a copy thereof for perusal of S.P. Chamba. According to PW-1, he of walked about 1½ kilometers on foot and then boarded some vehicle to reach in the police station at Chamba.
rt No doubt, he failed to tell the number of the vehicle and also admit that it was forest area and light was not available there. His testimony, however, reveals that the rukka Ext. PW-9/A was handed over by him at 2.30 a.m. (wrongly mentioned as 2.50 a.m. in the impugned judgment). PW-8 has stated that rukka was received by him in the police station at 2.30 a.m. It took 20 minutes to him to record the FIR and as such he handed over the case to PW-2 at about 2.50 a.m. There is no reason to disbelieve such evidence produced by the prosecution.
Learned trial Judge rather went wrong while holding that the case file could have not been handed over to PW-2 at 2.50 a.m. for the reason that rukka was delivered in ::: Downloaded on - 15/04/2017 21:56:33 :::HCHP 24 the police station at 2.30 a.m and not at 2.50 am. Such evidence seems to be correct for the reason that S.P. .
Chamba as per endorsement on the copy of rukka Ext.
PW-9/A under his signature has received the same at 2.50 a.m. It is proved that rukka was first delivered at 2.30 a.m. by PW-2 in the police station and a copy thereof of thereafter in the residence of S.P. Chamba at 2.50 a.m. and it is thereafter at about 2.50 a.m. he collected the rt case file from the police station. The file as per version of PW-2 was thereafter delivered by him to the I.O. on Chamba bus-stand at 3.30 a.m. Therefore, no inconsistency going to the very root of the prosecution case can be said to be there in prosecution evidence qua this aspect of its case.
25. There can't also be any inconsistency qua the production of case property before PW-8 and re-
sealing thereof by the said witness for the reason that the testimony of PW-9 and that of PW-8 makes it crystal clear that the case property was produced at 3.45 a.m. The same was re-sealed by PW-8. The case property, NCB forms, and seizure memo were produced before PW-8.
::: Downloaded on - 15/04/2017 21:56:33 :::HCHP 25The same was re-sealed by the said witness with seal 'O'.
Re-seal memo Ext. PW-4/B was prepared in this regard.
.
True it is that in the memo, there is no mention of the production of recovery memo, however, the extract of malkhana register Ext. PW-3/A reveals that PW-8 had deposited the case property along with NCB-I forms, of sample of seals and recovery memo. Not only this but in RC also, there is mention of forwarding the case property rt to Forensic Science Laboratory along with NCB forms in triplicate, recovery memo and sample of seals. True it is that it has come in the statement of PW-3 that the case property was deposited with him at 4.00 a.m., whereas, re-seal memo was prepared at 4.15 a.m. Such discrepancy, however, again is not of such a nature to discredit the prosecution case and rather the result of human error, hence should have not been given undue weightage.
26. In the opinion of learned trial Judge seal of rubber could have not been affixed with 'lakh' on the parcel containing the recovered charas. The opinion so formed, however, is without any substance for the ::: Downloaded on - 15/04/2017 21:56:33 :::HCHP 26 reason that rubber seal can conveniently be put with 'lakh' on a parcel. Learned trial Judge, therefore, was .
not justified in holding that the rubber seal with 'lakh' could have not been put on the parcel.
27. The inconsistencies and contradictions of noticed supra are, therefore, not of such a nature so as to render the recovery of charas weighing 4.500 rt kilograms from the accused doubtful. On the other hand, the prosecution case qua the recovery of charas in question from the accused after obtaining his consent and the search of police officials he conducted finds full support from the documentary evidence i.e. consent memo Ext. PW-1/A. The memo qua search of the police officials conducted by the accused Ext. PW-1/B and the recovery memo Ext. PW-1/E. The sample of sale 'N' is Ext.
PW-1/C, whereas, the NCB form Ext. PW-1/D. The accused has been apprised about the offence he committed and the provision of sentence provided therefor vide memo Ext. PW-1/F. The rukka Ext. PW-9/A contains all details qua the manner in which the investigation has been conducted. Not only this but the ::: Downloaded on - 15/04/2017 21:56:33 :::HCHP 27 endorsement under the signature of S.P. Chamba on the rukka Ext. PW-9/A amply demonstrate that the same was .
received by him at 2.50 a.m. The re-sealing of the case property by PW-8 is also proved from his own testimony and that of PW-9 as well as re-seal memo Ext. PW-4/B.
28. Now if coming to the testimony of PW-1 and of the I.O., the same corroborates the prosecution case in toto. Their testimony finds further corroboration from that rt of PW-2. They all have been subjected to lengthy cross-
examination, however, except for so called contradictions noted by learned trial Judge and discussed by us in this judgment hereinabove which in our view are not of such a nature so as to discredit the recovery of huge quantity of charas from the possession of accused, nothing else lending support to the prosecution case could be elicited therefrom.
29. This Court is not oblivious to the legal principle that in a case of this nature, where there is stringent provision qua punishment of offenders, if held guilty, the Court must look forward for cogent and reliable evidence and the prosecution is under an obligation to ::: Downloaded on - 15/04/2017 21:56:33 :::HCHP 28 prove its case beyond all reasonable doubt. This Court is also alive to the legal principle that more serious is the .
offence, the stricter degree of proof is required to hold the offender guilty. However, in view of the evidence discussed hereinabove, we find the present a case where the prosecution has proved its case against the of accused beyond all reasonable doubt. The findings hereinabove recorded by us on re-appraisal of the rt evidence available on record, brings this case out of the purview of the judgment of the apex Court in Noor Aga vs. State of Punjab, (2008) 16 SCC 417, relied upon by learned trial Judge to form an opinion that the evidence produced by the prosecution is not cogent and reliable and that the same rather suffers from discrepancies as well as contradictions. We rather find the present a case where the prosecution has been able to bring the guilt home to accused Balkrishan with the help of cogent and reliable evidence. The minor discrepancies and procedural irregularities, as we noticed hereinabove, neither goes to the very root of the prosecution case nor can be treated fatal to it.
::: Downloaded on - 15/04/2017 21:56:33 :::HCHP 2930. The prosecution has been able to prove the recovery of charas weighing 4.500 kgs. from the .
exclusive and conscious possession of accused.
Therefore, it was for the accused to have explained his innocence as envisaged under Section 35 and 54 of the Act. The present, as such, is a case where presumption of as envisaged under Sections 35 and 54 of the Act has to be drawn against accused and as he failed to explain rt his innocence, hence on this score also, it would not be improper to conclude that the charas weighing 4.500 kgs has been recovered from his exclusive and physical possession. The findings to the contrary, as recorded by learned trial Judge, are neither legally nor factually sustainable.
31. In view of what has been said hereinabove, the present is not a case where it can be said that the prosecution has failed to prove its case against the accused beyond all reasonable doubt. The reappraisal of the evidence by us rather lead to the only conclusion that the recovery of charas weighing 4.500 kgs from the conscious and exclusive possession of the accused ::: Downloaded on - 15/04/2017 21:56:33 :::HCHP 30 stands satisfactorily explained. The charge under Section 20 of the NDPS Act framed against him is, .
therefore, fully established on record. The accused has failed to explain as to what he was doing at Kotipul during odd hours i.e. 12.05 a.m. (mid night) had he not been carrying the contraband i.e. charas with him. He of has not produced any evidence in his defence. No explanation is forthcoming in his statement under Section rt 313 Cr.P.C as to when and where he was arrested by the police, had he not been present and nabbed by the police at Kotipul. Therefore, as has been held in Noor Aga's case, presumption under Section 35 and 54 of the Act has to be drawn against the accused.
32. Being so, the only inescapable conclusion would be that the accused has committed the offence punishable under Section 20 of the NDPS Act. He, therefore, is convicted accordingly. The findings of his acquittal as recorded by learned trial Judge are thus quashed and set aside. Let him to surrender to his bail bonds and he be produced in this Court on __________ for being heard on quantum of sentence. Production ::: Downloaded on - 15/04/2017 21:56:33 :::HCHP 31 warrants be issued accordingly.
(Dharam Chand Chaudhary) .
Judge (Vivek Singh Thakur) February 27, 2017. Judge (naveen) of rt ::: Downloaded on - 15/04/2017 21:56:33 :::HCHP 32 .
of rt ::: Downloaded on - 15/04/2017 21:56:33 :::HCHP