Himachal Pradesh High Court
Nand Lal vs Of on 19 August, 2023
Author: Virender Singh
Bench: Virender Singh
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 59 of 2017 .
Reserved on: 18.07.2023
Decided on : 19.08.2023
Nand Lal ...Appellant
Versus
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State of Himachal Pradesh ...Respondent
Coram
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The Hon'ble Mr. Justice Virender Singh, Judge.
Whether approved for reporting?1 Yes.
For the appellant : Mr. N.K. Thakur, Senior Advocate, with Mr. Divya Raj Singh, Advocate.
For the respondent : Mr. Tejasvi Sharma and Mr. Harinder Singh Rawat, Additional Advocates General, with Ms. Avni Kochhar Mehta, Deputy Advocate General.
Virender Singh, Judge.
Appellant-Nand Lal has preferred the present appeal, under Section 374 of the Code of Criminal Procedure (hereinafter referred to as 'CrPC'), against the judgment of conviction and order of sentence, dated 24 th 1 Whether Reporters of local papers may be allowed to see the judgment? Yes.
::: Downloaded on - 19/08/2023 20:35:00 :::CIS 2December, 2016, passed by the Court of learned Special Judge-II, Chamba, District Chamba, H.P. (hereinafter .
referred to as 'the trial Court'), in NDPS Act Sessions Trial No. 14/13, titled as State of Himachal Pradesh versus Nand Lal.
2. Vide judgment of conviction and order of of sentence, as referred to above, the appellant has been convicted for the commission of the offence, punishable rt under Section 20 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as 'NDPS Act') and sentenced to undergo rigorous imprisonment for a period of nine years and to pay a fine of ₹ 25,000/-, and, in case of default of payment of fine, to undergo simple imprisonment for a further period of 2½ years.
3. The appellant, hereinafter, is referred to as the accused, as, has been referred to, by the learned trial Court.
4. Brief facts, leading to the filing of the present appeal, before this Court, may be summed up, as under:
4.1. The SHO of Police Station Dalhousie has submitted the report, under Section 173 (2) CrPC, before ::: Downloaded on - 19/08/2023 20:35:00 :::CIS 3 the learned trial Court, disclosing therein, that on 9 th September, 2013, at about 6.00 p.m., HC Varinder Singh, .
IO, alongwith other police official, was on patrolling duty and was present near Petrol Pump on Pathankot Road. At about 06.05 p.m., one person was noticed, coming from Banikhet Petrol Pump side, on foot. He was having a white of coloured carry bag in his hand. On seeing the policy party, he, at once, turned back and tried to flee away, upon rt which, the Investigating Officer developed a suspicion, as he might be having some suspicious article/narcotic substance, in his bag. As such, on the basis of the suspicion, the said person was nabbed.
4.2. Meanwhile, one vehicle, bearing No. PB-10 AX-
5567, being driven by its driver, reached there. The driver of the vehicle was found to be one Raj Kumar. He was associated in the investigation of the case. Thereafter, the inquiry was conducted. The person, who was nabbed, on inquiry, disclosed his name as Nand Lal (accused). The police apprised him that since, he, on seeing the police party, had made efforts to flee away, upon which, a suspicion has developed in the mind of the Investigating ::: Downloaded on - 19/08/2023 20:35:00 :::CIS 4 Officer, that, he might be carrying some suspicious article or narcotic substance, in his carry bag, as such, search of .
the carry bag, as also, his personal search, is required to be conducted, for which, he has a legal right to give his personal search and the search of the carry bag to Magistrate/Gazetted Officer. He was also apprised that of those officers could be called from Dalhousie.
4.3. Thereafter, the accused gave consent for his rt personal search and the search of the carry bag to the Deputy Superintendent of Police. The said consent was documented and Deputy Superintendent of Police, Dalhousie was apprised about the factual position, upon which, the Deputy Superintendent of Police, Dalhousie, Shri Raman Sharma, directed the Investigating Officer to maintain status quo on the spot. Thereafter, Deputy Superintendent of Police, Dalhousie reached on the spot.
The accused conducted the personal search of the Deputy Superintendent of Police, Dalhousie, as well as, the police official present there. The said fact was also documented.
4.4. Thereafter, the carry bag was searched. On opening, inside the said carry bag, another white coloured ::: Downloaded on - 19/08/2023 20:35:00 :::CIS 5 carry bag, was found to be containing two envelopes, containing black substance, in the shape of pancake, .
which, on the basis of experience and smell, was found to be charas/cannabis. On weighment, the said charas was found to be 1 kg.
4.5. The Investigating Officer conducted the other of codal formalities on the spot and contraband was taken into possession. Thereafter, rukka was prepared and sent rt to Police Station, Dalhousie, for registration of the case, upon which, FIR No. 49 of 2013 has been registered against the accused. The accused was arrested and the contraband, so recovered, was sent to FSL Junga, for chemical analysis.
4.6. After receiving the positive report, the police has prepared the report, under Section 173 (2) CrPC, for commission of the offence, punishable under Section 20 of the NDPS Act, which was submitted before the Court of learned Special Judge, Chamba. Thereafter, the case was assigned to the learned trial Court.
5. After securing the presence of the accused and after complying with the provisions of Section 207 CrPC, ::: Downloaded on - 19/08/2023 20:35:00 :::CIS 6 the learned trial Court found a prima facie case, for commission of the offence, punishable under Section 20 of .
the NDPS Act. As such, the accused has been charge sheeted, vide order, dated 20th January, 2014.
6. When, the charge, so framed, was put to the accused, he had pleaded not guilty and claimed to be tried.
of Since, the accused had not pleaded guilty, as such, the prosecution had been directed to adduce the evidence to rt substantiate/prove the charge, framed against the accused.
Consequently, the prosecution has examined, as many as, thirteen witnesses.
7. After the closure of the evidence, the entire incriminating evidence, appearing against the accused, was put to him, in his statement, recorded under Section 313 CrPC. The accused has denied the entire prosecution case and took the defence of false implication. When, the opportunity to lead defence evidence was given to the accused, he has not opted to lead any evidence, in his defence.
8. The learned trial Court, after hearing the learned Public Prosecutor, appearing for the State, as well as, the ::: Downloaded on - 19/08/2023 20:35:00 :::CIS 7 learned defence counsel, appearing for the accused, has convicted and sentenced the accused, as mentioned above, .
vide judgment of conviction and order of sentence, dated 24th December, 2016.
9. Aggrieved from the said judgment of conviction and order of sentence, the present appeal has been of preferred, by the accused, before this Court, on the ground that the learned trial Court has gravely erred in passing the rt impugned judgment, which is not only against the law and facts on the file, but, is also based on surmises and conjectures.
10. Another ground to challenge the impugned judgment of conviction is that the prosecution could not prove that the contraband was allegedly recovered from the exclusive and conscious possession of the accused.
11. The prosecution story has also been assailed on the ground that the sole independent witness, PW-9, has not supported the case of the prosecution and despite the fact that he has been declared hostile and has been cross-
examined by the learned Public Prosecutor, nothing material could be elicited from him, from which, any help ::: Downloaded on - 19/08/2023 20:35:00 :::CIS 8 could be taken by the prosecution. The material contradictions, according to the accused, has not been .
considered by the learned trial Court.
12. The story of the prosecution is also stated to be suspicious and the case is stated to be planted against him, by the police official, to earn good will of their superiors.
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13. The quantum of sentence has also been challenged on the ground that the same is harsh, in rt comparison to the contraband, allegedly, recovered from the possession of the accused.
14. On the basis of the above facts, Mr. N.K. Thakur, learned Senior Counsel, assisted by Mr Divya Raj Singh, Advocate, has prayed that the appeal may kindly be accepted and the accused may kindly be acquitted from the offence, for which, he has been charge sheeted and convicted and sentenced, vide judgment of conviction and order of sentence.
15. Per contra, the prayer made by the learned counsel appearing for the accused has been opposed by Mr. Tejasvi Sharma, learned Additional Advocate General, appearing for the State, on the ground that the evidence of ::: Downloaded on - 19/08/2023 20:35:00 :::CIS 9 the official witnesses has rightly been considered by the learned trial Court and, as such, the judgment of conviction .
and order of sentence is not liable to be interfered with.
Hence, a prayer has been made to dismiss the appeal.
16. In order to decide the appeal in an effective manner, it would be just and appropriate, for this Court, to of discuss the oral, as well as, documentary evidence, adduced by the prosecution, before the learned trial Court.
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17. As stated above, when the accused has not pleaded guilty, the prosecution has examined as many as thirteen witnesses.
18. Investigating Officer of the case is PW 13-HC Varinder Singh. He has deposed that on 9 th September, 2013, he, alongwith HHC Mohd Aslam, Constable Suneel Kumar, Constable Yog Raj, had proceeded for picketing duty from SIU Chamba, at about 2.15 p.m., after entering their departure vide rapat, Ex. PW-4/A. The police party, under the leadership of this witness, had laid Nakka at a place, known as Golli, from 3.15 p.m. to 5.30 p.m. Thereafter, they had proceeded towards Banikhet-Belly. At ::: Downloaded on - 19/08/2023 20:35:00 :::CIS 10 about 6.00 p.m., they had laid Nakka near Belly, for checking the vehicles on road.
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18.1. At about 6.05 p.m., one person was noticed, coming from Banikhet Petrol Pump side. He was having a carry bag in his right hand. The said person, according to this witness, on seeing the police party, got perplexed and of tried to flee away from the spot. He was nabbed by other police official. Meanwhile, one vehicle, bearing registration rt No. PB-10AX-5567, being driven by its driver, came from Banikhet side, which was signalled to stop. On inquiry, the driver of the vehicle disclosed his name as Raj Kumar. He was associated in the investigation of the case.
18.2. Thereafter, the person, who was nabbed, was inquired. On inquiry, he disclosed his name as Nand Lal (accused). He accused was apprised that due to his act of fleeing away, from the spot, on seeing the police party, a suspicion has developed in the mind of the police party that he might be carrying some suspicious article and, as such, according to this witness, search of the person and his carry bag was required to be taken.
::: Downloaded on - 19/08/2023 20:35:00 :::CIS 1118.3. The accused was also apprised about his legal right to be searched in the presence of a Gazetted Officer or .
Magistrate. According to this witness, he has explained the meaning of Gazetted Officer to the accused. It has also been apprised to the accused that these officers are posted at Dalhousie. As such, the accused gave his consent to be of searched before the Deputy Superintendent of Police.
Then, the Deputy Superintendent of Police, Shri Raman rt Kumar, was requested to come to the spot. The Deputy Superintendent of Police had directed this witness to keep the spot intact as he was coming to the spot. Memo, in this regard, Ex. PW-8/A, was prepared, which was signed by accused, Constable Yog Raj, Constable Suneel Kumar and witness Raj Kumar.
18.4. At about 6.50 p.m., Deputy Superintendent of Police, Dalhousie, reached at the spot. He introduced himself to the accused and asked the accused to search the police party and witness, present on the spot. Deputy Superintendent of Police had also given his personal search to the accused vide memo Ex. PW-5/B. Thereafter, Deputy Superintendent of Police had given the written ::: Downloaded on - 19/08/2023 20:35:00 :::CIS 12 direction/consent memo Ex. PW-5/A, for taking search of the accused, as well as, his carry bag.
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18.5. The carry bag, carried by the accused, was searched. On opening, the same was found to be containing white coloured bag, in which, two transparent polythene bags, containing black coloured and hard of substance was found. The said substance was found to be charas, on the basis of experience and smell.
rt When the charas, so recovered, was weighed, on the electronic scale, the same was found to be 1 kg.
18.6. The recovered contraband was put in the same manner, in the polythene bag. The polythene bag was put in the white coloured carry bag and the white coloured carry bag was put in the carry bag, in the same manner.
The carry bag was sealed in a white piece of cloth with five seal impressions of seal 'K'.
18.7. This witness, thereafter, filled the NCB Forms in triplicate. The sample seal was drawn on a separate piece of cloth. Seal 'K' was embossed on the NCB Forms in triplicate. The seal, after use, was handed over to witness Raj Kumar. The photographs of the spot were clicked, ::: Downloaded on - 19/08/2023 20:35:00 :::CIS 13 which are Ex. PW-13/A-1 and A-2. The contraband was taken into possession vide memo, Ex. PW-5/D, alongwith .
NCB Forms, in triplicate and sample seal.
18.8. Thereafter, rukka, Ex. PW-13/B, was prepared and was sent to Police Station Dalhousie, through Constable Suneel Kumar, upon which, FIR has been of registered. A copy of the rukka was also sent to SP Chamba, for information, through HHC Mohd Aslam. The rt spot map, Ex. PW-13/C, was prepared and the statements of the witnesses were recorded, as per their version. The accused was arrested vide memo, Ex. PW-8/A. 18.9. After registration of the FIR, FIR number was filled in the documents prepared on the spot. After reaching the Police Station back, case property was handed over to SHO Sher Singh, alongwith the accused and the case file. Reseal memo Ex. PW-7/B was prepared. On 11 th September, 2013, special report Ex. PW-12/B was submitted to SP Chamba, through Constable Yog Raj. This witness has also recorded the statements of LHC Suresh Kumari, Constable Dharmender Kumar, Constable Surinder Kumar and HC Deepak Kumar.
::: Downloaded on - 19/08/2023 20:35:00 :::CIS 1418.10. After the completion of the investigation and on the receipt of the report from FSL, Ex. PX, the case file was .
submitted to SHO Sher Singh for preparation of the challan. This witness has duly identified the case property as Ex. P-1, P-2, P-3, P-4, P-5 and P-6.
18.11. In the cross-examination, this witness has of admitted that the statement of none of the witnesses was recorded to the effect that prior to Belly, they had laid rt nakka at Golli. In the spot map, Ex. PW-13/C, position of the raiding party has not been shown. He has further admitted that the meaning of the Gazetted Officer and Magistrate has not been recorded in the statement of any of the witnesses. Before proceeding to the spot, the police party was not aware that they had to go in a private vehicle, but, admitted that in the departure report, Ex. PW-4/A, it has been mentioned that the police party was going for picketing duty in a private vehicle. The said private vehicle was owned by HHC Mohd Aslam.
18.12. This witness has further admitted that at one point of time, SIU was officially wound up. Fuel in the private vehicle was purchased by this witness. According to ::: Downloaded on - 19/08/2023 20:35:00 :::CIS 15 this witness, sometimes, they used to claim the expenses of the fuel and sometimes, not. The police party remained at .
the spot till 10.45 p.m. The Deputy Superintendent of Police reached at the spot at 6.50 p.m. and left the spot at 7.45 p.m. Recovery memo was prepared in the presence of the Deputy Superintendent of Police. The contraband was of weighed only once. He has further admitted that near the spot, there is a petrol pump, however, this witness has not rt noticed any tea stall or mechanic shop. This witness has admitted that the ink pad has not been mentioned in the IO Kit, Ex. PW-5/B. He has denied that Ex. PW-5/B was prepared prior to the endorsement Ex. PW-5/A on Ex. PW-
8/A. He has admitted that in Ex. PW-5/D, there is no reference of taking into possession the NCB forms and sample seal.
18.13. The statements of Constable Dharvinder Kumar, Constable Surinder Kumar and HC Deepak Kumar have been recorded by this witness on 23 rd October 2013, after receiving the report of FSL and due to their busy schedule in other cases. The report has been received on 10 th October, 2013. This witness could not disclose the phone ::: Downloaded on - 19/08/2023 20:35:00 :::CIS 16 number of the Deputy Superintendent of Police, who has been called by him, to the spot.
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18.14. Rest, this witness has denied all the suggestions, which were put to him, by the learned counsel for the accused.
19. PW-5, Raman Sharma, Additional S.P., State of Vigilance and Anti Corruption Bureau, Dharamshala, was posted as SDPO/Dy.SP Dalhousie, at the relevant point of rt time. On 9th September, 2013, at about 6.20 p.m., HC Varinder Singh, Investigating Officer, telephonically informed him that they had apprehended one person near Banikhet Petrol Pump. It has also been informed to him that the said person was having a carry bag in his possession and on seeing the police part, he had made efforts to flee away, as such, on the basis of suspicion, he has been apprehended. When the options regarding the search were given to him, he has given his consent to be searched before DySP, upon which, this witness had instructed the Investigating Officer to remain on the spot and keep the things intact.
::: Downloaded on - 19/08/2023 20:35:00 :::CIS 1719.1. Consequently, this witness reached at the spot at about 6.50 p.m. After reaching on the spot, the accused .
was produced before him, alongwith the consent memo signed by him. This witness has identified the accused, as the person, who was present in the Court. As per this witness, thereafter, when, the accused was inquired about of the contents of the bag, he got perplexed. Upon this, written instructions, Ex. PW-5/A, were given by this rt witness, on the back side of the consent memo.
19.2. This witness has also instructed in writing, the accused, for the personal search of the police officials and the witnesses present there. After giving the search to the accused, search memo Ex. PW-5/B, was prepared.
Thereafter, the accused was searched by the Investigating Officer and the carry bag, taken in his hand, was opened.
In the said carry bag, another carry bag was found. On opening the second carry bag, two polythene envelopes were found. The polythene envelopes were found containing black coloured hard substance in the shape of sticks, which, on the basis of experience and smell, was found to be charas. On weighment, the charas was found ::: Downloaded on - 19/08/2023 20:35:00 :::CIS 18 to be 1 kg. The charas was again put in the same polythene envelopes and the same was put into a clothed .
parcel, which was sealed with five seal impressions 'K'.
After sealing, NCB forms were filled up, in triplicate, by the Investigating Officer. Sample seal was obtained on a separate piece of cloth, Ex. PW-5/C. This witness has duly of identified the case property, Ex. P-1 to P-6, which was shown to him, in the Court.
rt 19.3. According to this witness, he used to fill the log book of the official vehicle on the day-to-day basis. Extract of the log book is stated to be not on the case file. The endorsement, Ex. PW-5/A, was made at about 6.55 p.m. The proceedings, as per this witness, were conducted in the light, which has been explained by him, as mega light, carried in the IO Kit. The Investigating Officer has not recorded his statement, under Section 161 CrPC.
Banikhet-Pathankot road has been admitted to be a busy road. No separate memo, with regard to the search of the vehicle, was prepared. This witness has not put any signatures or seal on the parcel Ex. P-1. This witness remained on the spot for about one hour. Seizure memo, ::: Downloaded on - 19/08/2023 20:35:00 :::CIS 19 NCB For and sample seal were prepared in his presence.
Rest, this witness has denied all the suggestions, which .
were put to him, by the learned counsel appearing for the accused.
20. PW-8, Constable Suneel Kumar, has supported the version of the Investigating Officer on all material of aspects, of the case, in his examination-in-chief. This witness has also deposed that the Investigating Officer rt prepared the rukka, which was handed over to him, with a direction to take the same to Police Station Dalhousie. As per him, a copy of the rukka was also handed over to HHC Mohd. Aslam, with a direction to submit the same to SP, Chamba.
20.1. On reaching the Police Station, this witness had submitted the file to MHC, Police Station Dalhousie, for registration of the FIR. After registration of the FIR, MHC handed over the case file to him, which, he had submitted to the Investigating Officer, on the spot. Thereafter, the Investigating Officer has recorded his statement. This witness has also identified the case property, which has been shown to him, as Ex. P-1 to P-6, in the Court. This ::: Downloaded on - 19/08/2023 20:35:00 :::CIS 20 witness was working in SIU, for the last three years, from the date of recording of his evidence, alongwith the .
Investigating Officer. The Investigating Officer has investigated about 80 NDPS cases. This witness has also been cited as witness in a number of cases.
20.2. As per this witness, the police party had left of Chamba at about 2.15 p.m. They had put picketing at Golli. At about 5.30 p.m., they had started from Golli. The rt distance between Golli and Petrol Pump Banikhet is about 10 kms. Although, vehicles were checked at Golli, but, no veicle was challaned. Banikhet is stated to be thickly populated area. The distance between Banikhet Chowk and Petrol Pump is about 1 km. This witness could not disclose about the owner of the private vehicle, in which, they had started from SIU Office, Chamba. As per this witness, the said vehicle does not belong to any of the official of SIU. In the departure report, the details about the owner and number of private vehicle have not been mentioned.
21. PW-10, C. Yog Raj, was also one of the members of the police party, under the leadership of the Investigating ::: Downloaded on - 19/08/2023 20:35:00 :::CIS 21 Officer. In his examination-in-chief, this witness has also supported the version of the Investigating Officer, on all the .
material aspects of the case. As per him, on 11 th September, 2013, Investigating Officer has handed over him, the special report, which, he has submitted to SP, Chamba, at his residence. He has also identified the case of property, Ex. P-1 to P-6, which has been shown to him, in the Court. rt 21.1. This witness was also working with the Investigating Officer, in SIU, Chamba, for the last three years, from the date, when, he appeared in the witness box.
According to him, Investigating Officer had investigated about 60-70 NDPS Case and this witness had been associated, as witness, in about 40-50 cases. As per this witness, the police party had started from Chamba at about 2.15 p.m. Like PW-8, this witness has also admitted that the private vehicle, in which, the police party had started from SIU Office, Chamba, does not belong to SIU. In the departure report, the name of the owner and the number of the private vehicle have not been mentioned. Rest, this ::: Downloaded on - 19/08/2023 20:35:00 :::CIS 22 witness has denied all the suggestions, which were put to him, by the learned counsel appearing for the accused.
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22. PW-6, HHC Mohd. Aslam, has deposed that on 9th September, 2013, he was with the Investigating Officer.
At about 06.05 p.m., they noticed one person coming from Banikhet Petrol Pump side, who was carrying a white of coloured carry bag, in his right hand. After noticing the policy party, he became perplexed and tried to return back.
rt Thereafter, on the basis of suspicion, Investigating Officer nabbed him and on checking his bag, the contraband was recovered from his bag. Thereafter, Investigating Officer prepared rukka and handed over a copy of the same to this witness, at about 8.15 p.m., with a direction to deliver the same to SP Chamba, for information. He has delivered the same, at about 10.15 p.m. Like other witnesses, this witness has also admitted that Banikhet-Pathankot Road is a State Highway and a busy road. As per him, picketing was put by standing on the road. Picketing was done half kilometer away from the Petrol Pump, towards Banikhet.
This witness has not signed any document. Investigating Officer has recorded his statement, on 10 th September, ::: Downloaded on - 19/08/2023 20:35:00 :::CIS 23 2013. When the proceedings were conducted, on the spot, a number of vehicles had crossed from the spot. This .
witness has left the spot alongwith C. Suneel Kumar, at about 8.15 p.m. They took lift in a jeep up to Banikhet Chowk and, thereafter, boarded the bus from Banikhet at about 8.30 p.m. Rest, this witness has denied all the of suggestions, which were put to him, by the learned counsel appearing for the accused.
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23. PW-9, Raj Kumar, is the independent witness.
According to this witness, on 9th September 2013, he was on his way to Nainikhad from Dalhousie. When, he reached near Petrol Pump Banikhet, at about 5.00 - 6.00 p.m., the police had put picketing there. The police official had signalled him to stop the vehicle. Before he reached at the spot, one person had been apprehended by the police.
The police had directed this witness to sign some documents. The police officials had handed over him the seal of specimen 'K', which, this witness had brought on the day, when, he appeared in the witness box.
23.1. Since, this witness has not supported the case of the prosecution, as such, on the request of the learned ::: Downloaded on - 19/08/2023 20:35:00 :::CIS 24 Public Prosecutor, the learned trial Court has declared this witness as hostile and the learned Public Prosecutor has .
been directed to cross-examine him.
23.2. In his cross-examination by the learned Public Prosecutor, this witness has deposed that the accused was apprehended two years back, as such, he is not sure as to of whether the accused, present in the Court, was the same person, who was apprehended by the police, on 9 th rt September, 2013. According to him, documents, Ex. PW-
5/B, Ex. PW-5/C, Ex. PW-5/D, Ex. PW-8/A and Ex. PW-
8/C, bear his signatures. This witness, although, has signed the said documents, but, has not read the documents, as he was in hurry. He has also admitted that the search of the bag of the accused was conducted in his presence. The charas was recovered from the accused from his carry bag. The carry bag, containing charas, was put in a parcel and was sealed with 5 seal impressions of 'K'. The parcel, Ex. P-1, bears his signatures. This witness has also admitted that the seal, after use, was handed over to him.
Interestingly, this witness has also identified the case property, Ex. P-1 to P-6, shown to him, in the Court.
::: Downloaded on - 19/08/2023 20:35:00 :::CIS 2523.3. In the cross-examination by the learned counsel appearing for the accused, this witness has admitted that .
being taxi driver, he was familiar with the police officials, present on the spot. This witness remained on the spot for about ten minutes. This witness has put the signatures over the documents and no proceedings were conducted in of his presence. Firstly, this witness has deposed that the carry bag was not checked in his presence, but, again rt stated that the bag were opened and shown to him.
24. PW-2, HC Deepak Kumar, was posted as MHC at Police Station Dalhousie, at the relevant time. On 9 th September, 2013, C. Suneel Kumar has submitted rukka.
At that time, this witness was officiating as SHO. On the basis of the rukka, he has registered the FIR, Ex. PW-2/A and made the endorsement, Ex. PW-2/B, on the rukka. The case file was prepared and the same was handed over to C. Suneel Kumar, with a direction to hand over the same to the Investigating Officer. On the same day, at about 11.45 p.m., Inspector/SHO Sher Singh handed over the case property in a parcel sealed with 5 seal impressions of 'K' and 'X', alongwith sample seals 'K' and 'X', NCB forms in ::: Downloaded on - 19/08/2023 20:35:00 :::CIS 26 triplicate and copes of seizure memo and reseal memo.
This witness has entered the case property at serial No. 104 .
in Malkhana register No. 19 and proved the extract of the same as Ex. PW-2/C. 24.1. On 11th September, 2013, the case property was sent to FSL Junga through C. Surinder Singh, vide RC No. of 70/13. On the same day, this witness has filled up column No. 12 of NCB forms in triplicate, Ex. PA. He has proved rt copy of the Road Certificate as Ex. PW-2/D. On 11 th October, 2023, C. Dharvinder Singh deposited the case property, alongwith the chemical analysis report, to this witness. He has entered the said fact in the relevant registered at serial No. 113. This witness has received the rukka at about 9.15 p.m. He took 30 minutes for registration of the FIR. The person, who had brought rukka, had left the police station at about 9.45 p.m. As per this witness, no time has been mentioned in the endorsement, Ex. PW-2/B.
25. PW-3, C. Surinder singh, was posted as Constable General Duty, at the relevant time. As per his deposition, on 11th September, 2013, MHC Deepak Kumar ::: Downloaded on - 19/08/2023 20:35:00 :::CIS 27 handed over the case property, vide RC Ex. PW-2/D, to him, alongwith NCB forms in triplicate, docket, copy of .
reseal memo and seizure memo, with a direction to deposit the same at FSL, Junga. On 12 th September, 2013, at about 10.30 a.m., he has deposited the case property at FSL, Junga and handed over the receipt to MHC, Police of Station Dalhousie.
25.1. This witness has admitted that the movement of rt the police official is being recorded in the register. He has admitted that no report, regarding his departure and arrival, has been placed on the Court file. The docket was sealed. This witness came to know from the MHC that the docket contained NCB forms, seizure memo and reseal memo.
26. PW-4, LHC Uma Kumari, has entered rapat No. 7 in Rojnamcha Register and prove the copy of the same as Ex. PW-4/A. This witness has admitted that the number of the private vehicle has not been mentioned in the Rojnamcha Register, Ex. PW-4/A.
27. PW-7, C. Rajesh Kumar, was posted, at the relevant time, as Constable General Duty, in Police Station ::: Downloaded on - 19/08/2023 20:35:00 :::CIS 28 Dalhousie. As per his deposition, in the night of 9 th September, 2013, he was officiating as MC. At about 11.15 .
p.m., HC Varinder Singh, Investigating Officer, reached at the Police Station and handed over one parcel, allegedly containing charas, sealed with five seal impressions of 'K', NCB forms in triplicate, alongwith other documents, to of SHO/Inspector Sher Singh, who resealed the parcel with five seal impressions of 'X' and also drawn the sample seal, rt Ex. PW-7/A, on the back side of Ex. PW-5/C. He has proved the reseal memo as Ex. PW-7/B. He has identified the parcel, Ex. P-1, shown to him, in the Court. The seal, after use, was handed over to him. He has produced the seal in the Court. After re-sealing, SHO Sher Singh handed over the case property, alongwith the documents, to MHC Deepak Kumar. According to this witness, SHO took about half an hour to reseal the case property. At that time, SHO Sher Singh, HC Varinder Singh, IP and this witness were present there. Investigating Officer took about 10-15 minutes for putting the seals on the case property. Reseal memo was prepared within ten minutes. Before resealing, ::: Downloaded on - 19/08/2023 20:35:00 :::CIS 29 SHO verified the contents of parcel from the Investigating Officer.
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28. PW-11, Sher Singh, was posted as SHO, Police Station Dalhousie, at the relevant time. On 9 th September, 2013, Investigating Officer has handed over the case property, allegedly containing 1 kg charas, sealed in a of parcel, sealed with 5 seals of seal impression 'K', for re-
sealing, alongwith NCB forms in triplicate, sample seal and rt seizure and recovery memo. This witness resealed the parcel with 5 seals of seal impression 'X'. Sample seal 'X', Ex. PW-7/A, was drawn on the back side of Ex. PW-5/C. This witness has filled the relevant columns in NCB forms and embossed seal 'X' on the NCB forms in triplicate, Ex.
PA. The seal was, thereafter, handed over to C. Rajesh Kumar. Re-seal memo, Ex. PW-7/B, was prepared by this witness. After resealing, the case property was handed over to MHC Deepak Kumar. This witness, after receiving the report from FSL, Junga, has prepared the challan and submitted the same, in the Court.
28.1. This witness has identified the parcel as Ex. P-1.
According to him, when the case property was handed over ::: Downloaded on - 19/08/2023 20:35:00 :::CIS 30 to him, by the Investigating Officer, at that time, C. Rajesh Kumar was MC at Police Station Dalhousie, on night duty.
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Re-sealing process was not witnessed by any independent witness. Case property was received at about 11.15 p.m. This witness took half an hour to complete the re-sealing process. Since, the parcel was handed over to this witness, of in a sealed condition, as such, according to him, it was not possible to verify the contents of the parcel.
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29. PW-12, LHC Suresh Kumari, was posted as Assistant Reader to SP Chamba. As per her deposition, on 12th September, 2013, the then SP Chamba handed over the carbon cop of rukka Ex. PW-12/A to her with a direction to enter the same in the receipt register.
Consequently, this witness entered the same at serial No. 17262/VD/13 in the receipt register. She has proved the endorsement of SP Chamba as Ex. PW-12/A. On the same day, SP Chamba handed over the special report to this witness with a direction to enter the same in the receipt register, which was entered at serial No. 12263/VD/13.
She proved the same as Ex. PW-12/B. ::: Downloaded on - 19/08/2023 20:35:00 :::CIS 31
30. This is the entire evidence, which has been led, in the present case, by the prosecution.
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31. The accused, in the present case, has been charge-sheeted for the commission of offence under Section 20 of the NDPS Act, for which, the stringent punishment has been provided. It is the golden principle of criminal of jurisprudence that harsher the punishment, the stricter the proof should be. Since the stringent punishment has been rt provided for the offences, as such, the prosecution is bound to prove each and every ingredient of the offence beyond shadow of doubt. The Hon'ble Supreme Court in Noor Agah versus State of Punjab and others, (2008) 16 Supreme Court Cases 417, has held that the prosecution has to prove the case beyond any shadow of doubt. The relevant portion of para 56 of the said judgment is reproduced, as under:
"The provisions of the Act and the punishment prescribed therein being indisputably stringent flowing from elements such as a heightened standard for bail, absence of any provision for remission, specific provisions for grant of minimum sentence enabling provisions granting power to the Court to impose fine of more than maximum punishment of ₹ 2,00,000/- as also the punishment of guilt emerging from possession of Narcotic Drugs and Psychotropic Substances, the extent of burden to prove the foundational facts ::: Downloaded on - 19/08/2023 20:35:00 :::CIS 32 on the prosecution, i.e. "proof beyond all reasonable doubt" would be more onerous. A heightened scrutiny test would be necessary to be invoked. It is so because whereas, on the one .
hand, the court must strive towards giving effect to the parliamentary object and intent in the light of the international conventions, but, on the other, it is also necessary to upheld the individual human right and dignity as provided for under the U.N. Declaration of Human Rights by insisting upon scrupulous compliance of the provisions of the Act for the purpose of upholding the of democratic values. It is necessary forgiving effect to the concept of 'wider civilization'. The Courts must always remind itself that it is a well settled principle of criminal jurisprudence that more rt serious the offence, the stricter is the degree of proof. A Higher degree of assurance, thus, would be necessary to convict an accused."
32. First of all, coming to the argument of the learned Senior Counsel for the accused, qua the fact that the sole alleged independent witness, cited by the prosecution, when appeared in the witness box, has not supported the case of the prosecution and has been declared as hostile, on the request of the learned Public Prosecutor, by the learned trial Court. The evidence of the hostile witness does not efface from the record. The portion of the testimony, which supports the case of the prosecution, can be taken into consideration.
33. Although, independent witness (PW-9) has not supported the case of the prosecution, but, he has ::: Downloaded on - 19/08/2023 20:35:00 :::CIS 33 identified the case property, as well as, admitted his signatures over documents, Ex. PW-5/A, Ex. PW-5/C, Ex.
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PW-5/D, Ex. PW-8/A and Ex. PW-8/C. He has also not identified the accused as the person, who was allegedly nabbed at the spot by the police on 9th September, 2013.
34. It is no longer res integra that the evidence of the of official witnesses could only be considered, when, the same has been corroborated by the independent witness.
rt Law treats the official witnesses, at par, with the independent witnesses. The statement of the independent witnesses lends credence to the testimonies of the official witnesses.
However, conviction can be based on the testimonies of the official witnesses, if the same inspires confidence.
35. The term 'if inspires confidence' puts the Courts on caution that before accepting the version of the official witnesses, the judicial conscience of the Court must be satisfied that the testimony of the official witnesses is having a ring of truth in it. Since, the stringent punishment has been provided under the NDPS Act, as such, it is the duty of the Court to scrutinize the ::: Downloaded on - 19/08/2023 20:35:00 :::CIS 34 testimonies of the official witnesses with extra care and caution.
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36. It has rightly been argued by the learned Senior Counsel appearing for the appellant-accused that the presence of PW-5 on the spot, is doubtful, as, he is a gazetted officer of the rank of DySP and had he been, in of fact, visited the spot, as per his deposition, then, this material fact must have been found mentioned in the rt deposition of PW-6 HHC Mohd. Aslam, as, PW-6 HHC Mohd. Aslam was also one of the members of the SIU.
37. The departure report of the members of SIU is Ex. PW-4/A, in which, it has specifically been mentioned that the Investigating Officer, alongwith C. Aslam No. 311, C. Yog Raj No. 430, C. Suneel Kumar No. 228, had left SIU Office, in a private vehicle, in order to collect the information with regard to the violation of the Excise Act and NDPS Act. When, PW-6 appeared in the witness box, this witness remained silent about the material aspect of the case as to when the accused was allegedly nabbed, the Investigating Officer had given the options to him, for his search, as well as the search of his bag, by some gazetted ::: Downloaded on - 19/08/2023 20:35:00 :::CIS 35 officer or Magistrate, upon which, the accused allegedly opted to be searched in the presence of SDPO.
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38. Had the things been happened on the spot, as per the version of the Investigating Officer, then, this witness might have deposed all these material facts, in his examination-in-chief. His examination-in-chief is limited to of the fact that on 9th September, 2013, he, alongwith Investigating Officer, C. Yog Raj and C. Suneel Kumar had rt put picketing near Petrol Pump Banikhet and at about 06.05 p.m., one person was seen coming from Petrol Pump Banikhet side, who was having a white coloured carry bag in his right hand. On seeing the police party, according to this witness, the said person returned back, upon which, on the basis of suspicion, he was nabbed and on checking, contraband was recovered from his carry bag.
39. According to him, the Investigating Officer, after completing the proceedings, prepared the rukka and handed over the copy of rukka to him, with a direction to submit the same to SP Chamba for information, at about 8.15 p.m. Meaning thereby, this witness was present at the spot from 6 p.m. to 8.15 p.m. His statement is totally ::: Downloaded on - 19/08/2023 20:35:00 :::CIS 36 contradictory to the stand, as taken by the Investigating Officer, in this case. His statement is not only .
contradictory to the statement of the Investigating Officer, but, his statement has also created doubt about the version given by PW-5, about the manner, in which, he has allegedly reached at the spot and conducted the of proceedings.
40. No request was made by the learned Public rt Prosecutor to the learned trial Court, to declare this witness as hostile. Meaning thereby, whatsoever deposed by this witness, has been accepted to be correct. Had this witness been on the spot, then, certainly, some document might have been signed by him, but, according to him, he has not signed any document.
41. It has rightly been highlighted by the learned Senior Counsel for the accused that the deposition of PW-6 is sufficient to destroy the case of the prosecution beyond any repair. The situation would have been otherwise, had this witness been declared hostile and a suggestion would have been put to him to the effect that whatsoever he is ::: Downloaded on - 19/08/2023 20:35:00 :::CIS 37 deposing, in his examination-in-chief is not correct, as per the prosecution case.
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42. At the cost of repetition, whatsoever deposed by this witness has been accepted to be correct by not making any request to the learned trial Court to declare this witness as hostile.
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43. SIU, at the relevant time, as per the Investigating rtOfficer, was having its headquarter at Chamba and according to him, they had started from SIU Office, Chamba, at about 2.15 p.m., by making the departure report Ex. PW-4/A. The deposition of the Investigating Officer, regarding this fact does not seem to be genuine as he had made the futile attempt to give a miss to the material fact regarding their departure to the spot in a 'private vehicle'. The departure report is totally silent about the registration number of the vehicle and as to who was its owner.
44. Truth seldom appears directly. It has to be gathered from the surrounding circumstances. When this witness has been confronted about their movement in the private vehicle, in his cross-examination, he has made a ::: Downloaded on - 19/08/2023 20:35:00 :::CIS 38 futile attempt to introduce a new story by deposing that when, they had proceeded for the spot, they were not aware .
that they will have to go in a private vehicle, whereas, this fact itself has been mentioned in the departure report Ex.
PW-4/A.
45. Not only this, he has made another attempt to of justify his case by deposing that the said vehicle was owned by HHC Mohd. Aslam, whereas, HHC Mohd. Aslam, rt while appearing in the witness box, as PW-6, remained silent about this material aspect of the case.
46. Even otherwise, had the said private vehicle been owned by HHC Mohd. Aslam, then, there was no legal hitch for the Investigating Officer to get this material fact recorded in the departure report, Ex. PW-4/A, by mentioning the ownership of HHC Mohd. Aslam, as well as, the registration number of the alleged private vehicle.
47. As held in the earlier part of the judgment, that the conviction can be based upon the testimonies of the official witnesses, if the same inspire confidence. PW-13 has deposed that he has filled petrol in the vehicle of HHC Mohd. Aslam, whereas PW-6 Mohd. Aslam remained silent ::: Downloaded on - 19/08/2023 20:35:00 :::CIS 39 about this material fact. Even, other witnesses of the alleged search and seizure have not deposed anything .
about the ownership of the private vehicle, what to talk about mentioning the registration number of the same.
48. PW-8, C. Suneel Kumar, has feigned his ignorance about the fact as to who was the owner of the of private vehicle, in which, they had proceeded from SIU Chamba. According to him, the said private vehicle was not rt of any official of SIU Chamba.
49. Another contradiction, which has rightly been highlighted in the statement of this witness, is that he has deposed that they have not filled petrol in the private vehicle, since the petrol was already filled. These contradictions assume significance because the law provides stringent punishment, for the offences, under NDPS Act.
50. PW-10, C. Yog Raj has also deposed that he does not know as to who was the owner of the private vehicle, in which, they had started from SIU Chamba. As per him, the said vehicle was not owned by any official of SIU Chamba.
::: Downloaded on - 19/08/2023 20:35:00 :::CIS 40He has also deposed that the petrol in the said vehicle was not filled, as the same was already filled.
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51. The presence of PW-5, on the spot, also becomes doubtful, in view of the statement of PW-6 HHC Mohd.
Aslam. In his entire examination-in-chief, this witness has deposed that Investigating Officer had requested PW-5 to of come present. Thereafter, he came to the spot and proceedings were conducted in his presence.
rt
52. Even, the evidence of PW-5, who is a senior Police Officer, is also not confidence inspiring, as, his overcautious approach is sufficient to create doubt in the story, put forth by the prosecution.
53. As per the stand taken by the Investigating Officer (PW-13), after nabbing the accused, he had given the options to him, with regard to search of his person, as well as, his carry bag, and he has been apprised about his legal right to be searched in presence of a Gazetted Officer or Magistrate. The accused, according to the Investigating Officer, allegedly consented to be searched before the DySP, upon which, the Investigating Officer has telephonically ::: Downloaded on - 19/08/2023 20:35:00 :::CIS 41 informed Shri Raman Kumar, DySP, and requested him to come to the spot.
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54. Investigating Officer is the person, who has conducted the entire proceedings, of the case. He has deposed that at about 06.50 p.m., DySP reached at the spot, alongwith his gunman. He has introduced himself to of the accused and asked the accused to conduct the search of the police party and the witness, present at the spot.
rt After the search, memo, Ex. PW-5/B, was prepared and thereafter, DySP gave the written direction, on the consent memo, Ex. PW-5/A, for conducting the search of the accused, as well as, his carry bag.
55. On the other hand, contrary to the stand, as taken by the Investigating Officer, PW-5 DySP Raman Kumar has deposed that when he reached at the spot, at 06.50 p.m., accused was produced before him, alongwith the consent memo. After ascertaining his credentials, PW-
5, when allegedly asked the accused about the contents of the bag, then, he again got perplexed.
56. It has not been explained by the prosecution, as to how, this material fact has been omitted from the ::: Downloaded on - 19/08/2023 20:35:00 :::CIS 42 deposition of the Investigating Officer. The only conclusion, that can be drawn, from the said contradiction between the .
statements of two material witnesses is that the things were not happened on the spot, as alleged by the Investigating Officer.
57. In this case, the accused was allegedly nabbed of by the Investigating Officer at about 06.05 p.m. Thereafter, options were allegedly given to the accused regarding his rt personal search, as well as, the search of the bag, which, he was allegedly carrying in his hand, upon which, according to the Investigating Officer, the accused has opted to give his search to DySP and consequently, DySP has been requested to come to the spot, through telephone and he reached at the spot at about 06.50 p.m.
58. The consent memo has allegedly been prepared by the Investigating Officer, prior to the time, when, DySP reached at the spot. The consent memo is the document, which has been allegedly prepared by the Investigating Officer, after nabbing the accused. Admittedly, the alleged search of the bag, as well as, the personal search of the accused were conducted after 06.50 p.m., when DySP ::: Downloaded on - 19/08/2023 20:35:00 :::CIS 43 reached at the spot. After reaching the spot, he has also allegedly directed the accused to conduct the search of the .
police party, as well as, the independent witness.
59. In the NCB form, Ex. PA, the time of the seizure has been mentioned as 07.30 p.m. There is no quarrel about the fact that the consent memo, Ex. PW-8/A, was the of first document, which was prepared by the Investigating Officer. Thereafter, when, DySP (PW-5) reached at the spot, rt the document, with regard to the search of the police officials and witness was prepared, which is Ex. PW-5/B. It is not the case of the Investigating Officer that he was having prior intimation regarding the indulgence of the accused in carrying the contraband, namely, charas, which falls within the definition of Section 20 of the NDPS Act.
The contraband has been recovered in the presence of DySP and that too, after allegedly conducting the personal search of the police officials and the independent witness, by the accused.
60. However, in both these documents, the Investigating Officer has mentioned the provisions of Section 20 of the NDPS Act. It has not been clarified by the ::: Downloaded on - 19/08/2023 20:35:00 :::CIS 44 Investigating Officer, as well as, by the prosecution that prior to the search of the bag, which, the accused was .
allegedly carrying, how the Investigating Officer came to know about the fact that the contraband, which would be recovered, will fall within the purview of Section 20 of the NDPS Act.
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61. Section 20 of the NDPS Act is not the only offence under the NDPS Act. In both these documents, the rt Investigating Officer has mentioned the provisions of Section 20 of the NDPS Act, prior to the search. This fact is sufficient to create doubt in the prosecution case, as, in such a situation, an inference can be drawn that the things were not happened on the spot, in the manner, as deposed by the Investigating Officer.
62. Since, for the offences, under the NDPS Act, stringent punishment has been provided, as such, all these omissions and commissions are fatal for the case of the prosecution.
63. The learned Senior Counsel appearing for the accused has also highlighted that the contents of the document, Ex. PW-5/B, do not seem to be genuine, as, in ::: Downloaded on - 19/08/2023 20:35:00 :::CIS 45 the personal search of the person, mentioned at serial No. 7, Investigating Officer has mentioned the articles, which, .
had allegedly been recovered, as under:
"Vehicle PB-10-AX-5567, mobile phone, purse"
64. The learned Additional Advocate General could not satisfy the judicial conscience of this Court as to how a of vehicle can be found from the personal search of the witness. rt
65. All these facts assume significance to demonstrate the overcautious approach of the Investigating Officer.
66. In this case, the Investigating Officer has deposed that on receiving the case file, after registration of the FIR, he has filled the columns meant for mentioning the FIR number, but, NCB Form Ex. PA, is the document, in which, it seems that the Investigating Officer has filled the entire contents of columns No. 1 to 8, in one go. This document was allegedly filled in by the Investigating Officer, prior to sending rukka to the Police Station for registration of the FIR. In all other documents, the FIR number has been filled in with red ink, whereas, in this document, FIR ::: Downloaded on - 19/08/2023 20:35:00 :::CIS 46 number, as 49/13, has been mentioned with blue ink, that too, in one go.
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67. The NCB Form, Ex. PA is a vital piece of evidence. When its genuineness comes under cloud of suspicion, then, no benefit could be derived by the Investigating Officer from the said document.
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68. No other point has been urged or argued.
69. Considering all these facts, the judgment of rt conviction, passed by the learned trial Court, does not sustain in the judicial scrutiny, by this Court.
Consequently, the appeal is allowed and the impugned judgment of conviction is set aside. The accused is acquitted from the offence, punishable under Section 20 of the NDPS Act.
70. The accused is stated to be in judicial custody.
He is ordered to be released forthwith, if not required, in any other case.
71. Send down the record.
( Virender Singh ) Judge August 19, 2023 ( rajni ) ::: Downloaded on - 19/08/2023 20:35:00 :::CIS