Himachal Pradesh High Court
State Of Himachal Pradesh vs Virender Singh on 5 July, 2016
Bench: Dharam Chand Chaudhary, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Appeal No. 353 of 2011
.
Reserved on : 27.5.2016.
Decided on: July 5, 2016.
State of Himachal Pradesh. ......Appellant.
of
Versus
Virender Singh.
rt ......Respondent.
Coram
The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge.
The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
Whether approved for reporting?1Yes.
For the appellant : Mr. D.S. Nainta and Mr. Virender
Verma, Additional AGs.
For the respondent : Mr. Ajay Kochhar and Mr. Vivek
Sharma, Advocates.
Dharam Chand Chaudhary, J.
The State of Himachal Pradesh aggrieved by the judgment dated 20.5.2011 passed by learned Special Judge (II), Kinnaur at Rampur has preferred the present appeal with a prayer that the impugned judgment be quashed and the respondent (hereinafter referred as the 'accused') be 1 Whether the reporters of the local papers may be allowed to see the Judgment? yes.
::: Downloaded on - 15/04/2017 20:45:53 :::HCHP 2convicted of the charge under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter .
referred in short as "NDPS Act').
2. The prosecution case in a nut shell is that on 12.1.2009 PW9 SI Dulo Ram accompanied by PW2 Moti Ram of and Constable Chand Misra of Police Station, Nirmand left towards Bagipul, Darar Nallah and Urtu side in official vehicle No. HP-34-0085 being driven by Constable-driver rt Tikkam Singh PW1 for patrolling and detection of cases under the Excise and NDPS Act. A rapat was entered in the Rojnamcha in this regard, copy whereof is Ext.PW3/A. Around 1:00 P.M. the police party reached at Parjanda nallah. The vehicle was parked there. PW9 accompanied by the other police officials then proceeded towards Darar nallah and village Kalah on foot. When the police party reached at Darar nallah, the accused was spotted coming down through forest path. He was holding a bag on his right shoulder. On seeing the police party, he became nervous. On suspicion, PW9 over powered him with the help of other police officials. It was an isolated place. No one, therefore, could be associated as independent witness.
The I.O. PW9 has, therefore, associated Constable Chand ::: Downloaded on - 15/04/2017 20:45:53 :::HCHP 3 Misra and PW2 Constable Moti Ram as independent witnesses. On inquiry, the accused disclosed his name as .
Virender Singh and father's name Hawa Singh whereas the address as village and post office Budsham, Tehsil Samalkha, District Panipat (Haryana). Since the I.O.
of suspected that the accused must be carrying some narcotic substance or drugs with him or in the bag he was holding on his shoulder, an option that he has a legal right of being rt searched in the presence of a Magistrate or a Gazetted Officer was given to him orally as well as in writing vide memo Ext.PW1/A. The accused as per the endorsement made on Ext.PW1/A in his own hand has opted for being searched by the police i.e. PW9 himself. Consequently, the PW9 has first offered his personal search to the accused which he conducted vide memo Ext.PW1/B.
3. PW9 has thereafter conducted the search of the black coloured bag having written 'PUMA' thereon with metal and found one polythene bag half black and half red in colour having 'Lintaaz Premium Shirts' printed thereon.
The said polythene bag when searched further was found containing black coloured substance in the shape of rounds which on checking was found charas. Immediately ::: Downloaded on - 15/04/2017 20:45:53 :::HCHP 4 thereafter, PW9 has informed the then Deputy Superintendent of Police, Anni on his Cell No. 93180-11419 .
from his personal Cell No. 94182-97457 regarding the recovery of charas from the accused. The information so given to the DSP was reduced into writing. The recovered of charas was taken out from the bag and it was weighed with the weights and scale the I.O. PW9 having in his kit. The recovered charas when weighed was found 3 Kgs 500 rt grams. Out of the same, 25-25 grams was separated for the purpose of samples. The remaining bulk 3Kgs 450 grams was sealed in a cloth parcel Ext.P3 with three seals of impression 'T'. The sample parcels Ext.P1 and Ext.P2 were also sealed separately with 3-3 impressions of the same seal of impression 'T'. Ext.PW1/C was separately obtained on a piece of cloth. It is thereafter NCB-I form Ext.PW9/A was filled-in in triplicate by PW9. The charas recovered from the accused was thereafter taken by him in possession vide seizure memo Ext.PW1/D in the presence of PW1 Tikkam Singh and Constable Chand Misra. It is thereafter Rukka Ext.PW2/A was reduced into writing and sent to police Station Nirmand through PW2 Constable Moti Ram. The I.O.
has thereafter prepared the spot map Ext.PW9/B. On the ::: Downloaded on - 15/04/2017 20:45:53 :::HCHP 5 basis of Rukka Ext.PW2/A, FIR Ext.PW2/B was registered in Police Station, Nirmand by PW7 MHC Lal Chand. PW7 has .
handed over the case file to PW2 Constable Moti Ram for being taken to the I.O. PW9 on the spot. The accused was apprised about the grounds of arrest vide memo Ext.PW1/E. of He was arrested and intimation of his arrest given to his father Hawa Singh over Cell Phone No. 09050861977 vide memo Ext.PW1/F. The I.O. has recorded the statements of rt witnesses under Section 161 Cr.P.C. The case file was handed over to him by PW2 Constable Moti Ram at Nirmand bus stand. The statement of Constable Moti Ram was recorded at bus stand. The I.O. PW9 arrived at the Police Station along with the accused and case property at 8:15 P.M. He made entries of his arrival in the police station vide rapat No. 28, Ext.PW3/B. PW9 has deposited the case property along with NCB-I form in triplicate and specimen of seal with PW7 MHC Lal Chand in the Malkhana of Police Station. PW7 has made entries Ext.PW7/A in this regard in the Malkhana register. The I.O. prepared the special report Ext.PW5/B and it was sent to Sub Divisional Police Officer, Anni through PW6 HHC Shyam Lal. PW6 has delivered the same on the same day to PW5 ASI Sohan Lal, the then ::: Downloaded on - 15/04/2017 20:45:53 :::HCHP 6 Reader to SDPO Anni. PW5 has entered the special report in the prescribed register vide entries Ext.PW5/A. The .
special report was produced before the then DSP Anni Bhajan Singh Negi who on perusal thereof returned the same to PW5 for being retained in the record. One of the of sample parcels was sent for analysis to Forensic Science Laboratory, Junga, District Shimla on 14.1.2009 vide RC Ext.PW7/B along with NCB-I form in triplicate and a docket rt through Constable Nanak Chand. Subsequently, the entire bulk was also sent to Forensic Science Laboratory, Junga vide RC No. 37/2010 Ext.PW7/C through Constable Shyam Lal. It is so stated by the MHC PW7 while in the witness box. Later on, PW8 Constable Shyam Dass was deputed to Forensic Science Laboratory, Junga to collect the case property and also the report of Chemical Examiner. PW8 has brought the case property and also the Chemical Examiner's report Ext.PW8/A and handed over the same to PW7 for being retained in the Malkhana.
4. On completion of the investigation, PW9 has prepared the report under Section 173 of the Code of Criminal Procedure and it was filed in the Court.
::: Downloaded on - 15/04/2017 20:45:53 :::HCHP 75. Learned trial Court after having gone through the report and also documents annexed therewith arrived at a .
conclusion that prima-facie the commission of offence punishable under Section 20 of the NDPS Act has been made out against the accused, hence charge was framed of against him accordingly. The accused, however, not pleaded guilty to the charge and claimed trial. The prosecution was therefore, called upon to produce evidence rt in order to sustain charge against the accused.
6. The prosecution in turn has examined PW1 Constable Tikkam Singh who has witnessed the manner in which search and seizure has taken place on the spot and also PW2 Constable Moti Ram who was also present at the time when the search of the bag, the accused was carrying on his shoulder, was conduced and the contraband allegedly charas recovered from him. The another material prosecution witness is the I.O. PW9 who was posted as Station House Officer in Police Station, Nirmand at the relevant time.
7. The remaining prosecution witnesses are LC Rima, who has entered rapat rojnamcha Ext.PW3/A and Ext/PW3/B in the rojnamcha of the Police Station, PW4, who ::: Downloaded on - 15/04/2017 20:45:53 :::HCHP 8 has taken one of the sample parcels vide RC No. 6/09 to Forensic Science Laboratory, Junga, PW5, who was posted .
at the relevant time as reader to Dy.S.P. Anni. It is he who received the special report Ext.PW5/B and made the entries Ext.PW5/A in this regard in the relevant register. It is he of who even has produced the same before the Dy.S.P. for perusal. PW6 HHC Shyam Lal has taken the special report Ext.PW5/B to the office of Dy. S.P. Anni and handed over the rt same to PW5. PW7 HC Lal Chand was posted at the relevant time as Moharar Head Constable in Police Station, Nirmand. He received Rukka Ext. PW2/A from Constable Moti Ram and registered the case on the basis thereof vide FIR Ext.PW2/B. He made endorsement Ext.PW2/C on the Rukka and handed over the file for being taken to the I.O.
on the spot. The case property and also the sample parcels along with NCB form and sample of seal were deposited by PW9 with him in the Malkhana. He made the entries Ext.PW7/A in the Malkhana register in this regard. It is he who initially sent sample parcel for analysis vide RC No. 6/09 Ext.PW7/B and thereafter the entire bulk vide RC No. 37/10 Ext.PW7/C to Forensic Science Laboratory, Junga, Shimla for analysis. He made the entries in Malkhana ::: Downloaded on - 15/04/2017 20:45:53 :::HCHP 9 register Ext.PW7/D and also proved the receipts on RC Ext.PW7/B and Ext.PW7/C. PW8 Constable Shyam Dass has .
collected the case property from the Forensic Science Laboratory and also the report of Chemical Examiner Ext.PW8/A and handed over the same to MHC in the of Malkhana. PW9 is the Station House Officer, Police Station, Nirmand and also the Investigating Officer of this case.
8. On the other hand, the accused in his statement rt recorded under Section 313 of the Code of Criminal Procedure has denied the incriminating circumstances appearing against him in the prosecution evidence being wrong and also for want of knowledge. In his defence while answering question No. 27, it is stated that he is a patient of polio since his childhood, hence not able to walk in a hilly area. He was not at the alleged place of occurrence. He, however, was arrested from a bus namely Kumkum Bus Service at Nirmand near the office of Tehsildar when the police party found an abandoned bag behind driver's seat and as on inquiry he told that he is from Haryana, hence was made to alight from the bus and taken to the Police Station situated nearby. All the documents were prepared ::: Downloaded on - 15/04/2017 20:45:53 :::HCHP 10 by the police in the Police Station. In his defence, he has also examined one Satish Kumar DW1, a taxi driver.
.
9. Learned trial Judge on appreciation of the prosecution evidence and also the evidence produce by the accused in his defence has arrived at a conclusion that the of evidence as has come on record by way of the testimony of the prosecution witnesses is contradictory in nature, hence inspires no confidence.
rt Therefore, it was not deemed appropriate to place reliance on the evidence as has come on record by way of the testimony of official witnesses as in view of the findings recorded by learned trial Court the same was not reliable. Therefore, benefit of doubt is given to the accused and consequently, he has been acquitted of the charge.
10. The State has assailed the impugned judgment on the grounds, inter-alia, that the prosecution evidence has been appreciated by learned trial Court in a slip-shod and perfunctory manner. The trial Court has allegedly set unrealistic standards to evaluate the cogent and reliable evidence produced by the prosecution. The testimony of the prosecution witnesses has been discarded for untenable reasons in the absence of any proof of their enmity with the ::: Downloaded on - 15/04/2017 20:45:53 :::HCHP 11 accused. The findings recorded by the Court below are stated to be based upon conjectures and surmises. The .
impugned judgment, as such, has been sought to be quashed and set aside with further prayer that since the prosecution has proved its case against the accused beyond of all reasonable doubt, therefore, he be convicted for the offence he committed.
11. Learned rt Additional Advocate General has vehemently argued that the testimony of police officials is as much good as that of any other person. Also that, PW1, PW2 and PW9 while in the witness box have made consistent statements qua all material aspects of the case.
Learned trial Court has illegally brushed aside the same while giving undue weightage to the facts such as non-
joining of independent witnesses, contradictions minor in nature, qua the place of occurrence, on the point of traffic checking, filling of NCB form etc.-etc. Learned Additional Advocate General has thus urged that the evidence available on record is sufficient to establish the involvement of the accused in the commission of the offence. He, therefore, has been sought to be convicted for the offence, he committed.
::: Downloaded on - 15/04/2017 20:45:53 :::HCHP 1212. On the other hand, Mr. Vivek Sharma, Advocate, learned defence Counsel has pointed out from the record .
the contradictions in the statements of the prosecution witnesses and taken note of by learned trial Judge and has contended that on the basis of the evidence contradictory in of nature having come on record by way of testimony of official witnesses the findings of conviction could have not been recorded.
rt It is further argued that the search and seizure has not taken place in the manner as claimed by the prosecution and rather the recovery of contraband allegedly charas has been fastened upon the accused only because of he happens to be from the State of Haryana and was traveling in Kumkum bus service at Nirmand when the police failed to apprehend the real culprit.
13. The only point needs adjudication in this case is as to whether irrespective of prosecution having proved its case against the accused beyond all reasonable doubt he has been erroneously acquitted of the charge framed against him.
14. In order to decide the fate of this case, the reappraisal of the evidence produced by the prosecution and the accused in his defence is required. However, ::: Downloaded on - 15/04/2017 20:45:53 :::HCHP 13 before that it is desirable to note that an offence under the Act is not only heinous but serious in nature. An offence .
under the Act is not against an individual but against the Society as a whole because the illicit trafficking of drugs not only affects a particular individual but the public at large of 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, rt therefore, needs consideration keeping in mind the above factors. At the same time keeping in view there being provision of deterrent 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.
15. The statute casts a duty upon the prosecution not only to prove beyond all doubts the commission of an offence by an offender but additionally the compliance of various provisions mandatory in nature enshrined there under. Thus, law casts a duty on the Courts seized of the case registered under the Act to deal with it with all circumspect and caution and before recording the findings ::: Downloaded on - 15/04/2017 20:45:53 :::HCHP 14 of conviction 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.
16. The perusal of the judgment under challenge of reveals that learned trial Judge on being influenced with the factum of non-joining of independent witnesses, the so called contradictions rt in the statements of material prosecution witnesses PW1, PW2 and PW9 qua the exact location of the place of occurrence, place of parking of police vehicle, the manner of filling the columns of NCB-I form, the police party on its way to Bagipul and to the place of the recovery, whether conducted traffic checking or interrogated other persons and distance of the spot where search and seizure took place has concluded that the prosecution case is doubtful. The accused was, therefore, given the benefit of doubt and consequently acquitted of the charge framed against him.
17. The present is a case of recovery of charas weighing 3Kgs 500 Grams from the bag, the accused was carrying on his right shoulder. Learned trial Judge has not recorded any findings as to whether the contraband has ::: Downloaded on - 15/04/2017 20:45:53 :::HCHP 15 been recovered from the accused or not and rather discarded the prosecution story on being influenced by the .
fact that the prosecution witnesses are police officials and that there are contradictions in their statements.
18. The recovery of the contraband from the of exclusive and physical possession of the accused is sine qua non to infer the commission of offence by him. This aspect needs evidence cogent and reliable for its proof.
rt The joining of independent person in such a case to witness the search and seizure is in the interest of fair trial. However, it is again well settled that the evidence having come on record by way of the testimony of official witnesses is as much as good as that of an independent person. The same, however, is required to be examined with all circumspection and cautiously. If such evidence inspires confidence should be relied upon. It is held so by the Apex Court in Girja Prasad Versus State of M.P., (2007) 7 Supreme Court Cases
625.
19. Similar is the ratio of the judgment of the Apex Court in Makhan Singh Versus State of Haryana, (2015) 12 Supreme Court Cases 247. As per the ratio of this judgment the conviction of an offender booked under the Act can be ::: Downloaded on - 15/04/2017 20:45:53 :::HCHP 16 based on the testimony of official witnesses, however, if the same inspires confidence.
.
20. In the light of the legal and factual aspect of the matter discussed hereinabove, it is to be seen that the statements of PWs 1, 2 and 9 are worthy of credence or the of so called contradictions noticed by the learned trial Court goes to the very root of the prosecution case and render the same doubtful.
rt
21. PWs 1, 2 and 9 are categoric and specific in stating that they were away to Bagipul area in connection with patrolling and detection of cases under the Excise and NDPS Act on that day. According to PW1 and PW9 from Bagipul they went to Parjanda "nallah" and parked the official vehicle HP-34-0085 there on road side. Then they proceeded towards village Darar and Kalah on foot. The accused was spotted coming down through forest path when the police party was at point 'X' in the map Ext.PW9/B. The statements of all the three prosecution witnesses to this extent are consistent.
22. As per their further version the accused got scared the moment he noticed the presence of the police party there. He was over powered. The map Ext.PW9/B ::: Downloaded on - 15/04/2017 20:45:53 :::HCHP 17 amply demonstrates that the spot is an isolated place having no inhabitation. Although a village is there in the hill .
side as has come in the cross-examination of these witnesses. Yet nothing suggestive has come on record qua its distance from that place. The plea raised by learned of defence Counsel that someone should have been associated from that village as an independent witness is without any merit for the reason that the I.O. PW9 while in the witness rt box has stated that the place of recovery was isolated and as such, no one could be associated as independent witness. Similar is the version of PW1 Tikkam Singh and PW2 C. Moti Ram. The suggestion given to them that a village is situated in hill side of the spot no doubt has been admitted by them, however, as already said for want of any evidence qua the distance of that village, the plea in defence so raised by the accused is hardly of any help to his case. In hilly area one can see a village or place in the hill side even from a distance of 10 KM-15 KM and even 20 KM also and in that situation, it is not always possible to depute someone to the village and call someone there from to witness the search and seizure. The present is, therefore, not a case where it can be said that the action of ::: Downloaded on - 15/04/2017 20:45:53 :::HCHP 18 the I.O. in not associating the independent witness was intentional or deliberate.
.
23. The Apex Court in State of Haryana Versus Asha Devi and Another, (2015) 8 Supreme Court Cases 39 a case with more or less similar facts has held that when the of official witnesses were consistent that the efforts to join the independent witnesses were made however, none from public agreed to witness the occurrence, non-joining of the rt independent witnesses is not fatal to the prosecution case.
The relevant extract of this judgment reads as follows:-
"......We find that both DSP Maharaj Singh as well as IO Ramphal have deposed that public persons were available when the contraband was seized; however, none of the public persons acceded to their request of joining the investigation as an independent witness. The court below have found it unbelievable but no reason for the same is rendered. In our opinion, the consistent statement of both DSP as well as IO rather enhances the veracity of the circumstances as put forth by them...."
24. It is well settled at this stage that some time independent witnesses are not available to witness the ::: Downloaded on - 15/04/2017 20:45:53 :::HCHP 19 search and seizure and some time afraid to come and depose in favour of the prosecution. Also that the .
conviction can be based solely on the testimony of the official witnesses if inspires confidence. We are drawing support in this regard from the judgment again that of the of Apex Court in Makhan Singh Versus State of Haryana, (2015) 12 Supreme Court Cases 247. The relevant extract of this judgment reads as follows:-
rt "......In peculiar circumstances of the case, it may not be possible to find out independent witnesses at all places at all times. Independent witnesses who live in the same village or nearby villages of the accused are at times afraid to come and depose in favour of the prosecution. Though it is well settled 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....."
25. In view of the above, the findings that the failure on the part of the prosecution to join the independent witnesses has rendered the prosecution story doubtful as ::: Downloaded on - 15/04/2017 20:45:53 :::HCHP 20 recorded by learned trial Court are neither legally nor factually sustainable.
.
26. If coming to further version of PW1, PW2 and PW9, they are again categoric and specific while stating that on seeing the police party the accused got scared and of tried to flee away. He, however, was over powered and on inquiry he has disclosed his name and also the parentage as well as his complete address. In view of he having become rt nervous and tried to flee away has obviously created doubt in the mind of the police officials that he must be carrying some narcotic substance with him, the I.O. was left with only option to associate the police officials itself as witnesses and to proceed with the search of the accused and the bag he was carrying on his right shoulder. However, before that an option as required under Section 50 of the Act was given to the accused who, however, opted for being searched by the police itself. This aspect of the prosecution case finds corroboration from the consent memo Ext.PW1/A. PW1 and PW2 have stated in one voice that it is the bag of the accused which was firstly searched and the 'charas' weighing 3 KGs 500 Grams recovered therefrom. No doubt, PW2 has deposed while in the witness box that it is ::: Downloaded on - 15/04/2017 20:45:53 :::HCHP 21 the personal search of the accused was first conducted.
This contradiction, however, is not of such a nature so as to .
have gone to the very root of the prosecution case because all of them have stated in one voice that the charas was recovered from the polythene bag, which was taken out of from the bag the accused was carrying on his shoulder.
27. The prosecution witnesses are also unanimous so far as the sampling and sealing process is concerned. As rt per their version out of the recovered charas 25-25 grams was separated for the purpose of samples and sealed with impression of seal 'T'. They have also stated in one voice that the remaining charas weighing 3KGs 450 Grams was put into the same plastic envelope and then in the same bag which the accused was carrying on his right shoulder and then it was sealed with the impression of seal 'T'. As per the version of the I.O. PW9, the seal after its use was handed over to Constable Chand Misra. No doubt, the seal has not been produced nor Constable Chand Misra is examined during the course of trial. However, the version of the I.O. that the seal was handed over to Constable Chand Misra remained unshattered for the reason that no ::: Downloaded on - 15/04/2017 20:45:53 :::HCHP 22 suggestion that the seal was not handed over to said Shri Chand Misra was given to PW9 the I.O. in his cross .
examination. Therefore, the plea that for want of non-
production of the seal the trial has vitiated is neither legally nor factually sustainable. The judgment of a Co-ordinate of Bench of this Court in State of Himachal Pradesh Vs. Sunder Singh, Latest HLJ 2014 (HP) 1293 being distinguishable on facts is not applicable in this case.
rt
28. Now, if coming to NCB-I form Ext.PW9/A as per the evidence available on record the I.O. has filled-in all columns i.e. 1 to 8 thereof on the sot. As a matter of fact, it is column Nos. 1 to 7 needs to be filled-in by the I.O., so far as column No. 8 is concerned, against the same only facsimile of the seal used is required to be given.
According to PW1 and PW2 column Nos. 1 to 8 were filled-in by the I.O. on the spot. The I.O., however, has stated that it is the entries in column Nos. 1 to 7 were filled-in by him on the spot. As a matter of fact, it is the entries only in these columns are required to be filled-in whereas against column No. 8 only facsimile of seal is required to be placed. Even if it is a contradiction, the same again is of not such a nature so as to render the prosecution case as well as the recovery ::: Downloaded on - 15/04/2017 20:45:53 :::HCHP 23 of the contraband weighing 3 KGs 500 Grams from the accused doubtful. Therefore, it is satisfactorily established .
on record that NCB-I form was filled-in by the I.O. on the spot.
29. Much has been said about the place where the of official vehicle was parked by the police. PW1 and PW9 have stated in one voice that the same was parked at Parjanda nallah. However, PW 2 has stated that the vehicle rt was parked at Darar nallah. As a matter of fact, this witness has clarified that the vehicle was parked at a place in between Parjanda nallah and the place of recovery. The statements of PW1 and PW9 can also be interpreted in the similar manner because as per their version also the vehicle was at a place at Parjanda nallah in between the nallah and the place of recovery. In our opinion, undue weightage should have not been given to this aspect of the matter when charas in huge quantity i.e. 3 KGs 500 Grams has been recovered from the accused and the recovery thereof from him cannot be believed to have been planted on him.
30. The findings that the presence of the police party could have been noticed by the accused from the path through which he was coming down are again hypothetical ::: Downloaded on - 15/04/2017 20:45:54 :::HCHP 24 and based upon conjectures and surmises. It is not even the defence of the accused also that the place mark 'X' in .
the site plan was visible from the path on which he was walking down. Otherwise as per the site plan Ext.PW9/B there is growth of Cheel trees at that place. Therefore, the of presence of the police party on the spot may have escaped the notice of the accused while coming down cannot be ruled out. The trees as per the map Ext.PW9/B are Cheel rt trees. PW1 and PW9 have also stated so while in the witness box. True it is, that PW2 has stated that it is the Cheel tress and Kail trees which were in existence at the spot. His statement that Kail trees were also in existence there should have not been given undue weightage by the trial Court particularly when the map Ext.PW9/B discloses the existence of Cheel trees alone and similar is the statements of PW1 and PW9. Above all with the passage of time memory also fades and PW2 seems to have stated qua existing of kail trees due to this reason.
31. The contradictions in the statements of prosecution witnesses as pointed out that according to PW1 and PW9 the place of recovery was situated at a distance of 2 K.M. from Parjanda nallah whereas as per PW2 at a ::: Downloaded on - 15/04/2017 20:45:54 :::HCHP 25 distance of 500 meters from the place where they had parked the vehicle should have also not been taken so .
seriously because with the passage of time such type of contradictions are bound to occur. Above all parrot like version is not possible to be given by a witness that too of after a period over two years because the date of occurrence was 12.1.2009 whereas the statements of the witnesses were recorded on 4.11.2011.
rt In this view of the
matter, the contradictions in the statements of the
prosecution witnesses qua conducting of traffic checking and interrogation of other persons while on the way to the place of occurrence should have also not been viewed so seriously that too when PW1 and PW9 have stated that they have conducted traffic checking on the way while going to the place of occurrence. No doubt, PW2 has stated that they went straight to Bagipul and there from to Darar nallah and did not stop at any place on the way. However, as already observed, this aspect was also not required to be viewed so seriously so as to discard the recovery of huge quantity of charas from the accused.
33. As per the ratio of the judgment of Hon'ble Supreme Court in Dalel Singh Vs. State of Haryana, 2010(1) ::: Downloaded on - 15/04/2017 20:45:54 :::HCHP 26 SCC 149 and in State of Punjab Vs. Lakhvinder Singh and another, (2010) 4 SCC 402, minor contradictions and .
discrepancies in the statements of the witnesses are bound to occur due to fading of memories of the witnesses, hence should not be viewed so seriously to render the prosecution of case doubtful, if the same otherwise found to have been proved beyond all reasonable doubt with the help of cogent and reliable evidence.
rt
33. The present is also not a case where it can be said that the link evidence is missing for the reason that resealing of the parcels containing the case property was not involved in this case because the SHO was the I.O.
himself. He has handed over the parcels containing the case property and the sample parcels sealed with eight seals of impression 'T' along with NCB-I from in triplicate.
PW7 Head Constable Lal Chand is the Moharar Head Constable. The entries in Malkhana register Ext.PW7/A substantiate this aspect of the matter. The findings that there is no mention of handing over NCB-I form to PW7 are therefore contrary to the evidence available on record.
34. Now, if coming to the RC Ext.PW7/B, one of the sample parcels along with seizure memo and NCB-I form in ::: Downloaded on - 15/04/2017 20:45:54 :::HCHP 27 triplicate was sent to Forensic Science Laboratory, Junga through a docket for analysis. The case property was taken .
to the Laboratory by PW4 Constable Nanak Chand. There is no reason to disbelieve his testimony that till the deposit of the case property in the Laboratory the same remained in of his safe custody. The report Ext.PW9/C reveals that the sample sent for analysis was the mixture of cannabis and the sample of charas. Subsequently the entire recovered rt bulk sealed in a parcel was sent to Forensic Science Laboratory vide RC No. 37/10 Ext.PW7/C along with sample of seal, copy of FIR, NCB form in triplicate through Constable Shyam Lal PW8. The parcel containing the charas was also deposited in the Laboratory in same condition and not allowed to be tampered with as has come on record by way of the testimony of PW Shyam Lal. The report Ext.PW8/A reveals that the recovered contraband was extract of cannabis and as such sample of charas.
35. Learned trial Court has, therefore, erroneously concluded that the link evidence is missing for the reasons that the Malkhana register finds the entries Ext.PW7/A which reveals that besides the sample parcels and the parcel containing the recovered charas, NCB-I form was also ::: Downloaded on - 15/04/2017 20:45:54 :::HCHP 28 handed over to PW7 in triplicate. The finding that photocopy of NCB-I form was sent when the entire bulk .
forwarded to the Forensic Science Laboratory for analysis also appears to be not correct for the reasons that the repot Ext.PW8/A reveals that along with the parcel the specimen of of seal and NCB-I form were also sent to the Laboratory which were kept in safe custody till analyzed and the report arrived and dispatched.
rt The photocopy as referred to by the trial Court does not form the part of the record and seems to have come on record by way of mistake because there is no need to tag the NCB-I form with the report of the Chemical Examiner. Otherwise also, the photocopy of the NCB-I form is neither marked nor an exhibited document.
Therefore, the findings recorded by learned trial Court are contrary to the factual position.
36. On behalf of the accused, reliance has been placed on the judgment of the Hon'ble Supreme Court in State of Rajasthan Versus Parmanand and Another, (2014) 5 Supreme Court Cases 345. This judgment deals with the admissibility of joint communication made to two accused under Section 50 of the Act. The Apex Court has not held the same as legally admissible. It is not known as to how ::: Downloaded on - 15/04/2017 20:45:54 :::HCHP 29 this judgment is applicable in this case because the consent memo Ext.PW1/A makes it crystal clear that thereby the .
sole accused has been apprised about his legal right of giving his search either in the presence of a Gazetted Officer or a nearby Magistrate.
of
37. The ratio of the judgment delivered by a Single Bench of this Court in Dhyan Singh Versus State of Himachal Pradesh, rt 2015 (3) Shim. LC 1222 is also not applicable in this case for the reason that the case property in duly sealed condition was produced in the Court by the Public Prosecutor in the presence of the accused and learned Counsel representing him. The seals were intact.
The defence has not doubted the production of the case property in safe custody in the Court. No doubt, there is no evidence as to when the case property was taken out from the Malkhana and who has brought the same to the Court.
The fact, however, remains that the same was produced by learned Public Prosecutor in parcels which were duly sealed.
The parcels containing the case property after recording the evidence are ordered to be resealed with the seal of Court.
In this case the trial Judge has not passed any order on 4.1.2011 and 5.1.2011 when statements of PWs 1, 2 and 3 ::: Downloaded on - 15/04/2017 20:45:54 :::HCHP 30 were recorded. Therefore, the trial Court itself is at fault.
Anyhow, it is not the case of the accused that the case .
property was not sealed with seal of the Court and returned to the Malkhana. Therefore, the ratio of the judgment supra is not applicable in this case.
of
38. The ratio of the judgment of this Court in State of Himachal Pradesh Versus Gurpreet Singh & Connected matter, 2014(3) Him. L.R. (DB) 1897 and Lal Kishore Vs. rt State of H.P. & Anil Kumar Vs. State of H.P., Latest HLJ 2014 (HP) 962 is also distinguishable on facts, hence not applicable in this case. The consent memo Ext.PW1/A amply demonstrates that an option was given to the accused to opt for his search in the presence of a nearest Gazetted Officer or Magistrate. Therefore, the judgment of a Co-ordinate Bench of this Court in Ashok Kumar Versus State of H.P., Latest HLJ 2009 (HP) 557 is also not applicable.
39. On reappraisal of the evidence available on record and also the given facts and circumstances as well as law cited at the Bar, in our considered opinion, the present is not a case where it can be said that the prosecution has failed to prove its case against the accused ::: Downloaded on - 15/04/2017 20:45:54 :::HCHP 31 beyond all reasonable doubt. No doubt, the witnesses are police officials as the spot being an isolated place it was not .
possible to associate the independent witnesses. The evidence as has come on record by way of the testimony of official witnesses is however consistent, categoric and also of supports the prosecution case on all material aspects. The prosecution has, therefore, discharged the onus on it satisfactorily.
rt We find the present a fit case where the presumption as envisaged under Section 35 and 54 of the Act can be raised against the accused because onus to prove otherwise that he was neither apprehended nor charas recovered from him stood shifted on him.
40. The accused a resident of Haryana has, however, failed to explain as to what he was doing at Darar nallah, a remote area. Even if it is believed that he was traveling in Kumkum Bus Service and apprehended at Nirmand he failed to explain as to what was the purpose of his visit to that area and from where he had boarded Kumkum Bus Service and where he was going. DW1 Satish Kumar he examined also belongs to Punjab. No doubt, he claims himself to be the driver of Indica Car HP-01A-1989 being plied as taxi and had gone with passengers on that ::: Downloaded on - 15/04/2017 20:45:54 :::HCHP 32 day to Bagipul. However, there is no supporting evidence that some mechanical defect developed in the vehicle and .
he boarded Kumkum Bus Service for Rampur to bring a mechanic. He failed to produce any ticket and also the bill of repair of the vehicle. Therefore, to our mind, he is a liar of and has deposed falsely to help the accused may be for some extraneous consideration. The accused, therefore, has failed to discharge the onus upon him and as such, the rt presumption as envisaged under Sections 35 and 54 of the Act can be raised against him. In similar circumstances, the Apex Court in Noor Aga Versus State of Punjab, (2008) 16 SCC 417 has held as under:
"58. Sections 35 and 54 of the Act, no doubt, raise presumptions with regard to the culpable mental state on the part of the accused as also place burden of proof in this behalf on the accused; but a bare perusal the said provision would clearly show that presumption would operate in the trial of the accused only in the event the circumstances contained therein are fully satisfied. An initial burden exists upon the prosecution and only when it stands satisfied, the legal burden would shift. Even then, the standard of proof required for the accused to prove his innocence is not as high as that of the prosecution. Whereas the standard of proof required to prove the guilt of accused on the prosecution is "beyond all reasonable doubt" but it is 'preponderance of ::: Downloaded on - 15/04/2017 20:45:54 :::HCHP 33 probability' on the accused. If the prosecution fails to prove the foundational facts so as to attract the rigours of Section .
35 of the Act, the actus reus which is possession of contraband by the accused cannot be said to have been established.
59. With a view to bring within its purview the requirements of Section 54 of the Act, element of possession of the of contraband was essential so as to shift the burden on the accused. The provisions being exceptions to the general rule, the generality thereof would continue to be operative, namely, the element of rt possession will have to be proved beyond reasonable doubt.
6. Whether the burden on the accused is a legal burden or an evidentiary burden would depend on the statute in question. The purport and object thereof must also be taken into consideration in determining the said question. It must pass the test of doctrine of proportionality. The difficulties faced by the prosecution in certain cases may be held to be sufficient to arrive at an opinion that the burden on the accused is an evidentiary burden and not merely a legal burden. The trial must be fair. The accused must be provided with opportunities to effectively defend himself."
41. Be it stated that as per the ratio of the judgment supra it is the prosecution which has first to prove the foundational facts i.e. proof qua the recovery of the contraband from the exclusive and conscious possession of ::: Downloaded on - 15/04/2017 20:45:54 :::HCHP 34 the accused beyond all reasonable doubt to attract the rigors of Section 35 of the Act and it is only thereafter the .
burden to prove otherwise that the contraband has not been recovered from his exclusive and conscious possession would shift upon the accused. Also that, the of standard of proof to discharge the onus upon the accused to prove his innocence is not so high as compared to that upon the prosecution and the accused can discharge such onus rt upon him merely on preponderance of probability.
However, we are of the firm view that cogent and consistent eye witness count given by PWs 1 and 2 and supported by the testimony of the I.O. PW9 leaves no manner of doubt that the 'charas' has been recovered from the physical and conscious possession of the accused. As noticed supra, he however, failed to discharge the onus upon him even by preponderance of probability also. The factors such as he is a resident of Haryana, the purpose of his presence in a remote area where he has been apprehended and if he had not come there to carry 'charas' what was the purpose of his visit in that area which remained unexplained lead to the only conclusion that the 'charas' has been recovered from his physical and conscious possession.
::: Downloaded on - 15/04/2017 20:45:54 :::HCHP 3542. In view of what has been said hereinabove, the .
only inescapable conclusion would be that the prosecution has been able to prove its case against the accused beyond all reasonable doubt. We, therefore, set aside the impugned judgment and convict the accused for the of commission of the offence punishable under Section 20 of the NDPS Act.
43. rt The accused is now to be heard on the quantum of sentence. Let him appear for the purpose on _______.
(Dharam Chand Chaudhary), Judge.
(Chander Bhusan Barowalia), Judge.
July 5, 2016, (vs) ::: Downloaded on - 15/04/2017 20:45:54 :::HCHP