Himachal Pradesh High Court
Jeet Ram vs State Of H.P on 26 February, 2018
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
.
Cr. Appeal No. 329 of 2006
Decided on : 26.2.2018
Jeet Ram .....Appellant.
Versus
State of H.P .....Respondent.
Coram
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?1 Yes.
For the Appellant: Mr. Rajnish Maniktala, Advocate.
For the Respondent: Ms. Rita Goswami, Additional Advocate
General.
_______________________________________________________
Sureshwar Thakur, Judge (oral)
The instant appeal stands directed against the impugned judgment, of, 22.9.2006 rendered by the learned Additional Sessions Judge Solan, in, sessions trial No. 24 NL/7 of 2002, whereby he convicted the appellant (hereinafter referred to as "accused") for his committing an offence punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "ND & PS Act") also sentenced him as follows:-
1Whether reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 03/03/2018 22:54:13 :::HCHP
...2...
"..................................to undergo rigorous imprisonment for three .
years. He also sentenced to pay fine of Rs.20,000/- for the offence punishable under Section 18 of the ND & PS Act. In default of payment of fine, he shall further suffer rigorous imprisonment for a period of six months."
2. Brief facts of the case are that on 25.8.2002 at about 2.30 p.m. when the police patrolling party consisting of PW-8 SI Ananat Ram, HC Prem Lal, C Gurmail Singh, C Inder Singh and LC Pushpinder Kaur were present at place Gaguwal, they received secret information that the accused is indulging in illicit trade of opium. Upon this, SI Anant Ram prepared the reason of belief and sent the same to SDPO Parwanoo through C Gurmail Singh.
Thereafter the police party associated independent witnesses namely Rattan Lal and Shamsher Singh in the investigation and proceeded to the house of the accused and reached there at 2.45 pm. The accused was found present in his house and SI Anant Ram apprised the accused that he has a legal right to get his personal search conducted either before a Magistrate, gazetted officer or by the police party and accused gave his consent in writing that he was ready to give his search to the police party in the presence of the aforesaid independent witnesses. On the personal search of the police party to the accused, nothing incriminating was recovered from them. Thereafter the personal search of the accused was conducted and from the pocket of the jacket worn by the accused at the relevant time a polythene packet containing ::: Downloaded on - 03/03/2018 22:54:13 :::HCHP ...3...
80 grams of opium was recovered, memo Ex.PW-1/D was prepared in this .
regard. After completing all codal formalities and on conclusion of the investigation into the offence, allegedly committed by the accused, challan was prepared and filed in the Court.
3. The accused stood charged by the learned trial Court for his committing an offence punishable under Section 18 of ND & PS Act, to which he pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution examined 11 witnesses. On closure of prosecution evidence, the statement of the accused under Section 313 of the Code of Criminal Procedure was recorded, wherein, he pleaded innocence and claimed false implication. He chose not to lead any defence evidence.
5. On an appraisal of the evidence on record, the learned trial Court returned findings of conviction against the accused, for his committing an offence punishable under Section 18 of ND & PS Act.
6. The learned counsel appearing for the accused has concertedly and vigorously contended qua the findings of conviction recorded by the learned trial Court standing, not based, on a proper appreciation of evidence on record rather theirs standing sequelled by gross mis-
appreciation, by it, of the relevant material on record. Hence he contends qua the findings of conviction warranting reversal by this Court in the ::: Downloaded on - 03/03/2018 22:54:13 :::HCHP ...4...
exercise of its appellate jurisdiction and theirs standing replaced by findings .
of acquittal.
7. The learned Additional Advocate General has with considerable force and vigor contended qua the findings of conviction recorded by the Court below standing based on a mature and balanced appreciation of evidence on record and theirs not necessitating interference rather theirs meriting vindication.r
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. All the imperative links, in proof of the prosecution charge, commencing from preparation, of Consent memo (Ex.PW-1/A) upto the production of case property, in Court, convincingly besides efficaciously stand proven by cogent evidence, voiced, by the prosecution witnesses concerned.
10. The depositions of the police witnesses concerned, are bereft, of any rife or material intra-se contradictions borne in their respective testifications nor their respective testifications bring forth any rife intra-se contradictions, whereupon, hence implicit reliance is to be placed thereon.
11. The learned counsel appearing for the accused has (i) with vigour contended before this Court that the deposition of an independent ::: Downloaded on - 03/03/2018 22:54:13 :::HCHP ...5...
witness, one Ratan Lal, examined as PW-1 is not worthy of inspiring any .
confidence, given, his reneging from his previously recorded statement in writing, hence, he contends (ii) that thereupon even the depositions' of the police witnesses are consequently rendered un-inspiring.
12. While making the aforesaid submission, the learned counsel has drawn the attention of this Court, to the deposition of PW-1, who, in his examination-in-chief, makes an open echoing, of, his appending his thumb impression(s) on all memos concerned, without contents thereof, being read over or explained to him AND obviously without his comprehending them. The learned counsel for the accused has also drawn the attention, of this Court, to, the elicitations drawn from him, by the learned defence counsel, while holding him to cross-examination, wherein, he makes articulation(s) qua the entire proceedings being conducted in the police station besides has echoed qua no seizure or recovery, of, contraband being effectuated from the person of the accused.
13. The aforesaid submissions for the reasons to be ascribed hereinafter, are wanting in legal weight:-
(a) A wholesome and incisive reading, of, the testification of PW-1, unearths, qua his not denying the existence of his thumb impression(s) upon all the memos concerned. The consequence(s) whereof, as echoed by the provisions engrafted ::: Downloaded on - 03/03/2018 22:54:13 :::HCHP ...6...
in Sections 91 and 92, of, the Indian Evidence Act, provisions .
whereof stand extracted hereinafter, are (i) of his being estopped to depose in variance therefrom, (ii) his oral deposition in contradiction thereof, not denuding the worth or veracity of all the recitals borne in all memos concerned, whereon, his thumb impression(s) stand testified, by him, to exist. r "91. Evidence of terms of contracts, grants and other dispositions of property reduced to form of documents.--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 matter is required by law to be reduced to the form of a document, no evidence1 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.--
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 matter is required by law to be reduced to the form of a document, no evidence2 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." Exception 1.--When a public officer is required by law to be appointed in writing, and when it is shown that any particular person has acted as such officer, the writing by which he is appointed need not be proved. Exception 2.--Wills 2[admitted to probate in 3[India]] may be proved by the probate. Explanation 1.--This section applies equally to cases in which the contracts, grants or dispositions of property referred to are contained in one document, and to cases in which they are contained in more documents than one. Explanation. 2.--Where there are more originals than one, one original only need be proved. Explanation 3.--The statement, in any document whatever, of a fact other than the facts referred to in this section, shall not preclude the admission of oral evidence as to the same fact. Illustrations ::: Downloaded on - 03/03/2018 22:54:13 :::HCHP ...7...
(a) If a contract be contained in several letters, all the letters in which it is .
contained must be proved.
(b) If a contract is contained in a bill of exchange, the bill of exchange must be proved.
(c) If a bill of exchange is drawn in a set of three, one only need be proved.
(d) A contracts, in writing, with B, for the delivery of indigo upon certain terms. The contract mentions the fact that B had paid A the price of other indigo contracted for verbally on another occasion. Oral evidence is offered that no payment was made for the other indigo. The evidence is admissible.
(e) A gives B receipt for money paid by B. Oral evidence is offered of the payment. The evidence is admissible."
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, want of capacity in any contracting party, 1[want or failure] of consideration, or mistake in fact or law: (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, want of capacity in any contracting party, 3[want or 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, 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, 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 ::: Downloaded on - 03/03/2018 22:54:13 :::HCHP ...8...
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 the contract: Proviso (6).--Any fact may be proved which shows in what manner the language of a document is related to existing facts. Illustrations
(a) A policy of insurance is effected on goods "in ships from Calcutta to London". The goods are shipped in a particular ship which is lost. The fact that that particular ship was orally excepted from the policy, cannot be proved.
(b) A agrees absolutely in writing to pay B Rs. 1,000 on the 1st March, 1873. The fact that, at the same time, an oral agreement was made that the money should not be paid till the thirty-first March, cannot be proved.
(c) An estate called "the Rampure tea estate" is sold by a deed which contains a map of the property sold. The fact that land not included in the map had always been regarded as part of the estate and was meant to pass by the deed, cannot be proved.
(d) A enters into a written contract with B to work certain mines, the property of B, upon certain terms. A was induced to do so by a misrepresentation of B's as to their value. This fact may be proved.
(e) A institutes a suit against B for the specific performance of a contract, and also prays that the contract may be reformed as to one of its provisions, as that provision was inserted in it by mistake. A may prove that such a mistake was made as would by law entitle him to have the contract reformed.
(f) A orders goods of B by a letter in which nothing is said as to the time of payment, and accepts the goods on delivery. B sues A for the price. A may show that the goods were supplied on credit for a term still unexpired.
(g) A sells B a horse and verbally warrants him sound. A gives B a paper in these words "Bought of A a horse for Rs. 500". B may prove the verbal warranty.
(h) A hires lodgings of B, and gives B a card on which is written--"Rooms, Rs. 200 a month". A may prove a verbal agreement that these terms were to include partial board. A hires lodgings of B for a year, and a regularly stamped agreement, drawn up by an attorney, is made between them. It is silent on the subject of board. A may not prove that board was included in the term verbally.
(i) A applies to B for a debt due to A by sending a receipt for the money. B keeps the receipt and does not send the money. In a suit for the amount, A may prove this.
(j) A and B make a contract in writing to take effect upon the happening of a certain contingency. The writing is left with B, who sues A upon it. A may show the circumstances under which it was delivered. Comments Deed of collateral security: manner of execution If it is a deed of collateral security of defendant, ::: Downloaded on - 03/03/2018 22:54:13 :::HCHP ...9...
then the defendant would have had to execute a deed in favour of plaintiff and .
not vice versa, where the plaintiff has executed the mortgage the plea of evidence of collateral security offered by defendant appears not to fit into a situation; Ishwar Dass v. Sohan Lal, AIR 2000 SC 426. Inference can be drawn regarding proof of document by admission of parties either oral or other evidence; B.B. Lohar v. P.P. Goyal, AIR 1999 Sikkim 11. Position of stranger The rule as to exclusion of oral by documentary evidence governs the parties to the deed in writing. A stranger to the document is not bound by the terms of the document and is, therefore, not excluded from demonstrating the untrue or collusive nature of the document or the fraudulent or illegal purpose for which it was brought into being; Parvinder Singh v. Renu Gautam, (2004) 4 SCC 794.
(b) Apart from PW-1, making a stray deposition in his examination-in-chief, of, the contents of all the respectively drawn memos, being not comprehended, by him, for want of their respective recitals being neither explained nor read over to him, he has omitted to make any candid voicing, of, his thumb impression(s) existing thereon, being obtained, by the investigating Officer, by the latter, exerting duress or compulsion upon him. Corollary, thereof is, in absence of PW-1 making a candid communication, in his depositions qua the investigating Officer, obtaining his thumb impression(s), on, all the respective memos, upon, his exerting duress or compulsion upon him rather begetting an obvious conclusion of his prevaricating, in, testifying qua the contents of all the ::: Downloaded on - 03/03/2018 22:54:13 :::HCHP ...10...
respectively drawn memos being neither read over nor .
explained to him nor his comprehending them.
(c) Moreso when apart, from the aforesaid echoing made by PW-1 in his examination-in-chief, the learned defence counsel has not put any sharp, pointed or efficacious suggestion, to the Investigating Officer, holding therein apt echoings of the investigating officer concerned, deliberately omitting to either read over or explain to PW-1 the contents of the respective memos, whereon, PW-1 has uncontrovertedly appended his thumb impression(s). Effect of omissions of putting, of, the aforesaid suggestion(s), by the learned defence counsel to the investigating Officer, is of hence a fortified inference being erectable, of, the defence waiving its opportunity, to cement the purported exculpation of the accused, by PW-1, purportedly arising from the latter making an articulation of his appending his thumb impression(s), on the respective memos, without, the investigating Officer explaining or reading its contents to him. Conspicuously, when affirmative elicitations thereto emanating from the Investigating Officer concerned were rather imperative, for, completely carrying forward the espousal of the defence besides with the ::: Downloaded on - 03/03/2018 22:54:13 :::HCHP ...11...
Investigating Officer concerned alone being the best witness, .
for his being confronted with the effect of the aforesaid omissions. Concomitantly non-purveying thereof vis-à-vis the investigating Officer concerned hence wanes besides subsumes, the effect, if any, of the aforesaid bald echoings of PW-1.
14. In aftermath, for, all the reasons afore-stated, the existence of thumb impression(s), of, PW-1 upon all the memos, does belittle his oral testification in contradiction, to, all the recitals respectively borne thereon.
Concomitant effect thereof, is, of the investigating Officer concerned, only after reading over and explaining to PW-1, the contents of all the respectively drawn memos hence requesting PW-1 to append his thumb impression(s) thereon, whereupon all the recitals borne therein are to be construed to be voluntarily coauthored by PW-1 alongwith all co-
signatories thereto.
15. The learned counsel appearing for the accused, has, with vigor contended that with the 'FIR' borne in PW-10/A as also the 'reasons to believe' embodied in PW-4/A, hence making vivid echoings of an efficacious recovery being effectuated by the investigating Officer, from, a personal search conducted by him of the accused, besides, it being a sequel of prior information (i) thereupon the strictest compliance with the mandate of section 42 of the ND & PS Act was enjoined to be begotten, ::: Downloaded on - 03/03/2018 22:54:13 :::HCHP ...12...
provisions whereof stand extracted hereinafter. He contends that the .
strictest compliance with the mandate of section 42 of ND & PS Act, is, grossly amiss in this case. (ii) Given the investigating Officer concerned failing to demonstrate either in the 'FIR' or in the memo containing the 'reasons to believe' qua the validity or the authenticity of the "prior information" embodied therein, whereupon he contends that the purported efficacious recovery in consequence thereof, is extremely frail and un-amenable to acceptance, yet for hereafter reasons his contention is rejected (a) the learned defence counsel while holding the prosecution witnesses concerned, to, cross-examination, omitting to in course thereof, make any unearthings or any echoings qua the recitals borne in the respectively drawn memos, especially, qua the prior information reduced into writing by the investigating Officer concerned, being devoid of veracity or being invented. (b) Moreso, when Rattan Lal, the person named in the FIR was evidently associated as an independent witness AND also stepped into the witness box also (c) with C Gurmail Singh, through whom, the 'reasons to believe' stood transmitted to the SDPO concerned, not, making any voicing in his testification qua the 'reasons to believe' encapsulated therein, wanting in veracity AND, of, his not transmitting 'it' to the SDPO concerned. Consequently, there is no palpable transgression of the mandate of section 42 of the ND & PS Act, rather, the ::: Downloaded on - 03/03/2018 22:54:13 :::HCHP ...13...
'FIR' and the 'reasons to believe' held therein, vis-à-vis the prior .
information embodied therein, are, hence construed to be authentic AND free from any doctoring . Corollary thereof is that the entire proceedings are neither vitiated nor stained nor are a sequel of a stratagem employed by the Investigating Officer concerned.
"Power of entry, search, seizure and arrest without warrant or authorisation.--
(1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,--
(a) enter into and search any such building, conveyance or place;
(b) in case of resistance, break open any door and remove any obstacle to such entry;
(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and
(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act: Provided that if such officer has reason to believe that ::: Downloaded on - 03/03/2018 22:54:13 :::HCHP ...14...
a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape .
of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.
(2) Where an officer takes down any information in writing under sub-
section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.]"
16. A wholesome analysis of the evidence on record portrays that the appreciation of evidence as done by the learned trial Court,is, not suffering from any perversity and absurdity nor it can be held that the learned trial Court in recording findings of conviction hence has committed any legal misdemeanor, in as much, as, its mis-appreciating the evidence on record or its omitting to appreciate relevant and admissible evidence. In aftermath this Court does not deem it fit and appropriate to hold that the findings of conviction recorded by the learned trial Court, merit interference.
17. In view of the above discussion, I find no merit in this appeal, which is accordingly dismissed and the judgment of the learned trial Court is maintained and affirmed.
18. The learned counsel appearing for the accused submits that given the quantum of opium standing recovered, from, the personal search of the accused, being a quantity greater than smaller quantity, yet, lesser than the commercial quantity, besides given the accused being afflicted ::: Downloaded on - 03/03/2018 22:54:13 :::HCHP ...15...
with a severe cardiac malady, hence a lenient view be taken in the .
imposition of sentence upon him. The aforesaid submission is accepted.
Consequently, the sentence imposed upon him by the learned trial Court is modified, from, three years rigorous imprisonment, to, six months rigorous imprisonment, for commission of an offence punishable under Section 18 of ND & PS Act. The fine imposed upon him is also reduced to ten thousand and in default of payment of fine, he shall further undergo rigorous imprisonment for one month. Period of detention, if any, undergone by the accused during the investigation, inquiry or trial of the case and before the date of conviction, is ordered to be set off ,from, the term of sentence imposed upon him. The sentence imposed upon the convict be forthwith put into execution by the learned trial Court.
Records be sent back forthwith.
26th February, 2018 (Sureshwar Thakur)
(priti) Judge
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