Himachal Pradesh High Court
Jitender Kumar @ Nardu vs Respondent on 9 April, 2015
Author: Sanjay Karol
Bench: Sanjay Karol, P. S. Rana
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
Criminal Appeal No. 468 of 2010
Judgment Reserved on : 1.4.2015
Date of Decision : April 9 , 2015
Jitender Kumar @ Nardu ...Appellant
State of Himachal Pradesh
r to
Versus
...Respondent
Coram:
The Hon'ble Mr. Justice Sanjay Karol, Judge.
The Hon'ble Mr. Justice P. S. Rana, Judge.
Whether approved for reporting? 1
Yes.
For the appellant : Mr. Anoop Chitkara, Advocate for the appellant.
For the respondent : Mr. Ashok Chaudhary, Addl. Advocate General
with Mr. Vikram Thakur, Dy. A.G. for the
respondent-State.
Sanjay Karol, J.
Convict Jitender Kumar (appellant herein), has assailed the judgment dated 23.9.2010, passed by Special Judge (Fast Track Court), Kullu, District Kullu, Himachal Pradesh, in Sessions Trial No. 12 of 2010, titled as State v.
Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 17:58:49 :::HCHP 2Ravi Thakur & another, whereby he stands convicted and sentenced to undergo rigorous imprisonment for a period of .
ten years and pay fine of `1,00,000/- and in default thereof, to further undergo simple imprisonment for a period of two years.
2. In relation to an F.I.R. No. 464 of 2009 dated 24.12.2009 (Ext. PW-6/A), registered at Police Station Sadar, Kullu, District Kullu, H.P., co-accused Ravi Thakur was charged for having committed an offence punishable under the provisions of Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act), whereas, accused Jitender Kumar (appellant herein) was charged for having committed an offence punishable under the provisions of Section 29 read with Section 20(b)(ii)(C) of the Act.
3. Trial Court, appreciating the testimonies of the witnesses of recovery, namely Const. Kuldip Kumar (PW-1), HHC-Tek Singh (PW-2) and Inspector Prem Dass (PW-7) convicted the accused for the charged offences. Prosecution was able to establish that co-accused Ravi Thakur was carrying the knapsack from which 4.3 k.g. of charas was recovered and that accused Jitender abetted/conspired such crime. Hence both were found guilty of the respective ::: Downloaded on - 15/04/2017 17:58:49 :::HCHP 3 charges so framed against them and sentenced as aforesaid.
.
4. Convict Jitender Kumar (appellant herein) as also co-accused Ravi Thakur (appellant in Cr. Appeal No. 467 of 2010) assailed the judgment by filing separate appeals, which were clubbed and heard together. However on 8.7.2014 Cr. Appeal No. 467 of 2010 so filed by co-accused Ravi Thakur was disposed of vide separate judgment of that date. Without laying challenge to the findings returned by the trial Court, Ravi Thakur confined the challenge only on the question of sentence i.e. the period of imprisonment, which he was required to undergo in the event of default of payment of fine by him, which, taking into account the overall attending circumstances, was so done and reduced to a period of six months instead of two years.
5. In the instant appeal, convict Jitender Kumar lays challenge to the findings returned by the trial Court on a limited ground. It is alleged that since recovery was effected from the knapsack carried by co-accused Ravi Thakur, appellant cannot be held guilty for he was not even aware of any contraband substance so carried by him. Thus recovery of conscious possession of the narcotic substance, by no stretch of imagination, can be attributed to the ::: Downloaded on - 15/04/2017 17:58:49 :::HCHP 4 appellant. In support of such limited challenge, Mr. Anoop Chitkara, learned counsel, invites our attention to the .
testimonies of Const. Kuldeep Kumar, HHC- Tek Singh and Inspector Prem Dass and also seeks reliance upon the following decisions rendered by various courts: Abdul Rashid Ibrahim Mansuri vs. State of Gujarat, (2000) 2 SCC 513; Narcotics Control Bureau, Jodhpur vs. Murlidhar Soni & others, (2004) 5 SCC 151; Amarsingh Ramjibhai Barot vs. State of Gujarat, (2005) 7 SCC 550; Sorabkhan Gandhkhan Pathan & another vs. State of Gujarat, (2004) 13 SCC 608;
Sat Pal vs. State of Himachal Pradesh, 2012 (3) Sim. L.C. 1673; Virabhai Kalabhai Aayar vs. State of Gujarat, 2008 (3) Crimes 234; Shri Ram vs. The State of U.P., (1975) 3 SCC 495; Bachchan Lal vs. State, AIR 1957 (Allahabad) 184.
6. Before dealing with the same, it would be only appropriate to first set out the prosecution case.
7. On 24.12.2009, after completing investigation of F.I.R. No. 107 of 2009, Inspector Prem Dass, ASI Hem Raj, Const. Kuldeep Kumar and HHC Tek Singh had set up a naaka at Baladhi. At about 6.30 p.m., accused persons came from the side of Parbati river. Co-accused Ravi Thakur was carrying a knapsack and appellant Jitender was walking behind him. Seeing the police party, appellant shouted ::: Downloaded on - 15/04/2017 17:58:49 :::HCHP 5 "there is police run away". Resultantly both the accused turned back and started running away. However they were .
apprehended after a distance of about 30 meters. The person carrying the knapsack revealed his name as Ravi Thakur and the other person revealed his name as Jitender Kumar, appellant herein. Inspector Prem Dass, on suspicion made inquiries from both the accused and after completing the statutory r formalities, accused were searched by associating ASI Hem Raj (not examined) and Const. Kuldeep as witnesses. The knapsack (Ext. P-4) was checked. Nylon bag (Ext. P-3) was kept inside, from which charas like substance was recovered. The contraband substance was weighed and found to be 4.3 k.g. which was sealed with seal impression-T. NCB form (Ext.PW-4/C), in triplicate, was filled up on the spot and contraband substance seized vide memo (Ext. PW-1/E). Ruka (Ext. PW-7/A) was sent for registration of the case through HHC-Tek Singh. Resultantly F.I.R. No. 464/2009, dated 24.12.2009 (Ext. PW-6/A) was registered against both the accused under the provisions of Section 20/29 of the Act at Police Station Sadar, Kullu, Distt. Kullu, H.P. who were arrested on the spot. Necessary investigation was also conducted and completed on the spot. Case property along with the NCB forms was handed over to the ::: Downloaded on - 15/04/2017 17:58:49 :::HCHP 6 MHC- Jawala Singh (PW-4) who sent the parcel for chemical analysis to the State Forensic Science Laboratory, Junga .
through Constable Pritam Singh (PW-5) and report (Ext. PA) received and taken on record. As per the report, contraband substance was charas. With the completion of investigation, challan was presented in the Court for trial.
8. Since the challenge to the findings returned by the trial Court is on a limited ground, we deem it appropriate to reproduce the relevant portion of the testimonies of the prosecution witnesses, who have established recovery of the contraband substance from the conscious possession of both the accused:
Constable Kuldeep Kumar (PW.1) "...... ...When we were present on the foot-path at Baladhi at about 6.30 P.M two persons were coming from Parbati River towards us. One was having a backpack. When they were at a distance of 40 meters from us, they returned and ran away. We ran after them and apprehended them. they appeared to be frightened. When we inquired about their names, the person carrying the backpack, revealed has name as Ravi and the other person revealed his name as Jitender, who are present in the Court (identified correctly)." ... ...::: Downloaded on - 15/04/2017 17:58:49 :::HCHP 7
HHC Tek Singh (PW.2) "... ...We had set up a nakka at Baladhi on a .
foot path. Two persons came from Parbati river side. When they were at a distance of 40 mtrs. from police party, the person at the rear shouted run-run. Those persons started running away. We followed them and apprehended them after some distance. One was carrying a backpack. The person carrying backpack revealed his name as Ravi Thakur and the other person revealed his name as Jitender, who are present in the Court (identified correctly)." ... ...
Xxx xxx by Sh. B. R. Rana, Advocate, for accused Ravi.
"... ...They ran backwards on the foot path. One accused was apprehended by Kuldeep, but I cannot tell the name of the accused who was apprehended by him. One accused was apprehended by me. I cannot tell who was apprehended by me, because, it was dark. The investigation was carried out at the place where accused were apprehended." ... ...
Xxx xxx by Sh. Chuneshwar Thakur, Advocate.
"... ...We heard the voice I cannot tell which of the accused had said those words. It is correct that there is bazaar at Jari and Jari is also a village." ... ...
Prem Dass (PW.7) "... ...Two persons were found coming from the side of Parbati river at about 6.30 PM. They got frightened on seeing the police. The person ::: Downloaded on - 15/04/2017 17:58:49 :::HCHP 8 who was going ahead was carrying backpack and other was not carrying anything. The .
persons who was walking on the rear said on seeing us that there is police run away. They returned and started running and were apprehended after a distance of about 30 mtrs.
The person carrying the backpack revealed his name as Ravi Kumar and the other revealed his name as Jitender Kumar (identified correctly). I got suspicious and made inquiry from the accused whether they wanted to be searched in the presence of Magistrate or a competent Gazetted Officer and this was their legal right."
... ....
Xxx xxx by Sh. Chuneshwar Thakur, Advocate.
"We were not having any prior
information. I came to know about the fact that Jitender had seen us while I made inquiries about their names and address. I came to know about the fact who was going ahead and who was behind after the investigation. The person who shouted run away was behind the other person. I was not conversant with his voice prior to said shout." ... ...
[Emphasis supplied]
9. A careful perusal of the testimonies so extracted hereinabove would reveal that both the accused were found together by the police party. Otherwise it stands proved that police party had set up a naaka in the jungle.
Now why would both the accused be together in the jungle ::: Downloaded on - 15/04/2017 17:58:49 :::HCHP 9 at the same time and place remains unexplained by them.
That recovery was effected from the bag carried by co-
.
accused is not in dispute.
10. At this juncture, we may also observe that in his statement under Section 313 Cr.P.C. appellant-accused has taken the following defence:
"I was present in my shop at Jari on 24.12.2009 at 4 p.m. I was called out of the shop and was told that enquiry was to be made from me. Taxi of Pyare Lal, Pradhan Taxi Union was called. I was taken to police station where my signatures were obtained on blank papers. I was put in the jail."
We do not find the same to have been probablized, even remotely by Pyare Lal (DW-1), a taxi driver, who has not placed on record either the logbook or the receipt of payment for hiring the taxi, as is so alleged by the appellant.
11. Version so disclosed by the prosecution witnesses is clear, consistent, cogent and unambiguous.
The veracity of their statements cannot be said to have been shattered in any manner. They are police officers/officials and have no reason to falsely implicate the accused. Categorically they have deposed that the person ::: Downloaded on - 15/04/2017 17:58:49 :::HCHP 10 who was at the rear shouted "run run". Const. Kuldeep Kumar in his unrebutted testimony does state that both .
were frightened. Witnesses do state that after seeing the police party when the accused tried to flee away, they were apprehended on the spot. In fact, Inspector Prem Dass has clarified that the person walking ahead was carrying the knapsack and the other person was not carrying anything.
He is certain that the person walking behind, after seeing the police party, said "there is police run away". He has identified appellant Jitender Kumar to be the said person.
Yes it was 6.30 p.m. and slightly dark. But then he has uncontrovertedly identified the said person.
12. At the time of recovery of the contraband substance three police officials were present on the spot.
Both the accused were found together. Conduct of appellant Jitender Kumar is quite apparent, establishing his criminal intent of commission of crime. There was no need for him to have (i) either got frightened; (ii) shouted "run away";
and then (iii) ran away from the spot.
13. In Dehal Singh vs. State of Himachal Pradesh, (2010) 9 SCC 85 and Madan Lal & another vs. State of Himachal Pradesh, (2003) 7 SCC 465, under similar circumstances, Court has held accused to be in constructive ::: Downloaded on - 15/04/2017 17:58:49 :::HCHP 11 possession of the contraband substance. In Madan Lal (supra) Court held as under:
.
"22. The expression "possession" is a polymorphous term which assumes different colours in different contexts. It may carry different meanings in contextually different backgrounds. It is impossible, as was observed in Supdt. & Remembrancer of Legal Affairs, W.B. vs. Anil Kumar Ghunja (1979) 4 SCC 274 to work out a completely logical and precise definition of "possession" uniformally applicable to all situations in the context of all statutes.
23. r The word "conscious" means awareness about a particular fact. It is a state of mind which is deliberate or intended.
24. As noted in Gunwantlal vs. State of M.P. (1972) 2 SCC 194 possession in a given case need not be physical possession but can be constructive, having power and control over the article in the case in question, while the person to whom physical possession is given holds it subject to that power of control.
25. The word "possession" means the legal right to possession (See: Heath v. Drown (1972) 2 All ER
561). In an interesting case it was observed that where a person keeps his firearm in his mother's flat which is safer than his own home, he must be considered to be in possession of the same. (See:
Sullivan v. Earl of Caithness, (1976) 1 All ER 844)
26. Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section ::: Downloaded on - 15/04/2017 17:58:49 :::HCHP 12 35 of the Act gives a statutory recognition of this position because of the presumption available in law.
.
Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles.
27. In the factual scenario of the present case, not only possession but conscious possession has been established. It has not been shown by the accused- appellants that the possession was not conscious in the logical background of Sections 35 and 54 of the Act."
14. The apex Court in Dharampal Singh vs. State of Punjab, (2010) 9 SCC 608, has held that:-
"14. Section 54 of the Act raises presumption from possession of illicit articles. It reads as follows:
"54. Presumption from possession of illicit articles. - In trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under this Act in respect of -
(a) any narcotic drug or psychotropic substance or controlled substance;
(b) any opium poppy, cannabis plant or coca plant growing on any land which he has cultivated;
(c) any apparatus specially designed or any group of utensils specially adopted for the manufacture of any narcotic drug or psychotropic substance or controlled substance; or
(d) any materials which have undergone any process towards the manufacture of a narcotic drug or psychotropic substance or controlled ::: Downloaded on - 15/04/2017 17:58:49 :::HCHP 13 substance, or any residue left of the materials from which any narcotic drug or psychotropic substance or controlled substance has been .
manufactured, for the possession of which he fails to account satisfactorily."
15. From a plain reading of the aforesaid it is evident that it creates a legal fiction and presumes the person in possession of illicit articles to have committed the offence in case he fails to account for the possession satisfactorily. Possession is a mental state and Section 35 of the Act gives statutory recognition to culpable mental state. It includes knowledge of fact. The possession, therefore, has to be understood in the context thereof and when tested on this anvil, we find that the appellants have not been able to satisfactorily account for the possession of opium.
16. Once possession is established the Court can presume that the accused had culpable mental state and have committed the offence. In somewhat similar facts this Court had the occasion to consider this question in the case of Madan Lal and another vs. State of H.P., 2003 (7) SCC 465, wherein it has been held as follows:
"26. Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles.::: Downloaded on - 15/04/2017 17:58:49 :::HCHP 14
27. In the factual scenario of the present case, not only possession but conscious possession .
has been established. It has not been shown by the accused- appellants that the possession was not conscious in the logical background of Sections 35 and 54 of the Act.""
[Emphasis supplied]
15. Section 29 of the Act reads as under:
"29. Punishment for abetment and criminal conspiracy. - (1) Whoever abets, or is a party to a criminal conspiracy to commit, an offence punishable under this Chapter, shall, whether such offence be or be not committed in consequence of such abetment or in pursuance of such criminal conspiracy, and notwithstanding anything contained in section 116 of the Indian Penal code, be punishable with the punishment provided for the offence.
(2) A person abets, or is a party to a criminal conspiracy to the commit, as offence, within the meaning of this Section, who, in India abets or is a party to the criminal conspiracy to the commission of any act in a place without and beyond India which -
(a) would constitute an offence if committed within India; or
(b) under the laws of such place, is an offence relating to narcotic drugs or psychotropic substances having all the legal conditions required to constitute it such an offence the same as or analogous to the legal conditions required to constitute it an offence punishable under this Chapter, if committed within India."
16. Abetment and conspiracy, under the provisions of the Indian Penal Code has been defined as under:-
::: Downloaded on - 15/04/2017 17:58:49 :::HCHP 15"107. Abetment of a thing. - A person abets the doing of a thing, who -
.
First. - Instigates any person to do that thing; or Secondly. - Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly. - Intentionally aids, by any act or illegal omission, the doing of that thing. Explanation 1. - A person who, by willful misrepresentation, or by willful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.
Explanation 2. - Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act."
17. What is abetment has been considered by the apex Court in Goura Venkata Reddy vs. State of A.P., (2003) 12 SCC 469, wherein it has been held as under:
"8. Section 107 IPC defines abetment of a thing. The offence of abetment is a separate and distinct offence provided in the Act as an offence. A person abets the doing of a thing when (1) he instigates any person to do that thing; or (2) engages with one or more other persons in any conspiracy for the doing ::: Downloaded on - 15/04/2017 17:58:49 :::HCHP 16 of that thing; or (3) intentionally aids, by act or illegal omission, the doing of that thing. These things are .
essential to complete abetment as a crime. The word "instigate" literally means to provoke, incite, urge on or bring about by persuasion to do any thing. The abetment may be by instigation, conspiracy or intentional aid, as provided in the three clauses of Section 107. Section 109 provides that if the act abetted is committed in consequence of abetment and there is no provision for the punishment of such abetment then the offender is to be punished with the punishment provided for the original offence.
"Act abetted" in Section 109 means the specific offence abetted. Therefore, the offence for the abetment of which a person is charged with the abetment is normally linked with the proved offence."
[See: Kishore Lal vs. State of H.P., (2007) 10 SCC 797]
18. Section 107 IPC lays down the ingredients of abetment which include instigating any person to do a thing or engaging with one or more persons in any conspiracy for the doing of a thing, if an act or illegal omission takes place in pursuance of that conspiracy and in order to the doing of that thing, or intentional aid by any act or illegal omission to the doing of that thing.
19. As per the section, a person can be said to have abetted in doing a thing, if he, firstly, instigates any person ::: Downloaded on - 15/04/2017 17:58:49 :::HCHP 17 to do that thing; or secondly engages with one or more other person or persons in any conspiracy for the doing of .
that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or thirdly, intentionally aids, by any act or illegal omission, the doing of that thing. Explanation to Section 107 states that any willful misrepresentation or willful concealment of material fact which he is bound to disclose, may also come within the contours of 'abetment'.
20. In order to constitute an offence of abetment, the abettor must be shown to have intentionally aided the commission of crime. No doubt prosecution has to prove and establish, beyond reasonable doubt, essential ingredients of abetment/conspiracy, however, it is not the requirement of law that the word "abetment"/"conspiracy"
has to be stated by the witness. Ingredients can be inferred from the attending circumstances.
21. The appellant's conduct was only to facilitate the crime as otherwise he would not have reacted in the manner in which he so did. Also he did not protest his false implication and illegal detention at the first opportune time.
22. In our considered view, the appellant was engaged in conspiracy and abetted the crime with ::: Downloaded on - 15/04/2017 17:58:49 :::HCHP 18 co-accused Ravi Thakur. With criminal intent he asked him to run away from the spot at the time when the contraband .
substance was carried by them. He facilitated commission of the crime.
23. Appellant has failed to discharge the statutory burden so imposed upon him [Dharampal Singh (supra)].
This he was absolutely required to do so in law, after the prosecution witnesses were able to establish his presence and his knowledge of co-accused possessing the contraband substance, by way of his conduct, and recovery of the contraband substance from his conscious possession which is constructive in nature.
24. We shall now deal with the decisions relied upon by Mr. Anup Chitkara, learned counsel, in support of his limited contention.
25. In Abdul Rashid Ibrahim (supra) the Court was dealing with a case where autorickshaw of the appellant was hired by co-accused and as such he was not in the know of the contraband substance so carried by them. Also as is evident from para-23 of this report, Court found the driver to have rebutted the statutory presumption by way of different means.
::: Downloaded on - 15/04/2017 17:58:49 :::HCHP 1926. In Narcotics Control Bureau, Jodhpur (supra), Court was dealing with a case where the surviving accused .
persons, by leading credible evidence had established their false implication in the crime. Not only they protested their arrest but also disclosed the factum of injuries sustained by them, through the hands of the police, on the very first opportune time and occasion when they were produced before the Court.
r Prosecution failed to establish that the surviving accused persons were aware of the fact that their co-accused was carrying any contraband substance.
27. In Sorabkhan Gandhkhan Pathan (supra), Court was dealing with a case where the accused was travelling in an autorickshaw alongwith three other persons, out of whom only two were found to have been involved in the crime and also prosecution was not able to establish connection between both of them. The facts here are different.
28. In Amarsingh Ramjibhai Barot (supra), Court was dealing with a case where individual recoveries were effected from the accused persons who were seen together, which is not in the case in hand.
29. The decisions referred to in Sat Pal (supra), Virabhai Kalabhai Aayar (supra), and Bachchan Lal (supra) ::: Downloaded on - 15/04/2017 17:58:49 :::HCHP 20 are clearly distinguishable on facts and need no further attention in view of the law discussed hereinabove.
.
30. In Shri Ram (supra) the Court has held intentional aiding by an act or illegal commission, the doing of that thing to be a crime. The Court categorically held "intentional aiding" and therefore "active complicity" to be the gist of abetment.
31. Each case has to be considered on its own given facts by applying the settled principles of law. As already observed, in the instant case, both the accused were in the company of each other. The appellant never protested against his alleged false implication in the crime. Accused belong to the same place and had not explained their presence on the spot. In our considered view, prosecution has been able to establish its case beyond reasonable doubt from the conscious possession of the appellant-accused.
32. For all the aforesaid reasons, there is no reason to interfere with the judgment passed by the trial Court.
The Court has fully appreciated the evidence placed on record by the parties. There is no illegality, irregularity, perversity in correct and/or in complete appreciation of the material so placed on record by the parties. Findings of ::: Downloaded on - 15/04/2017 17:58:49 :::HCHP 21 conviction cannot be said to be erroneous or perverse.
Hence, the appeal is dismissed.
.
Appeal stands disposed of, so also pending application(s), if any.
Records of the Court below be immediately sent back.
r to (Sanjay Karol),
Judge.
(P. S. Rana),
Judge.
April 9 , 2015 (PK)
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