Himachal Pradesh High Court
Firoz Khan @ Amzad Khan & Another vs Narcotics Control Bureau on 9 May, 2016
Author: Sanjay Karol
Bench: Sanjay Karol, Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Criminal Appeal No. 26 of 2014
.
Judgment reserved on : 19.4.2016
Date of Decision : May 9 , 2016
Firoz Khan @ Amzad Khan & another ...Appellants
of
Versus
Narcotics Control Bureau,
rt
Sub Zone Mandi, Distt. Mandi, H.P. ...Respondent
Coram:
The Hon'ble Mr. Justice Sanjay Karol, Judge
The Hon'ble Mr. Justice, Ajay Mohan Goel, Judge.
Whether approved for reporting? Yes. 1
For the appellant : Mr. Sunil Awasthi, Advocate, for the appellants.
For the respondent : Mr. Ashwani Pathak, Sr. Advocate, with Mr.
Sandeep Sharma, Advocate, for the
respondent.
Sanjay Karol, J.
Assailing the judgment dated 16.1.2014, passed by learned Special Judge (II), Mandi, District Mandi, H.P., in Sessions Trial No. 23 of 2012, titled as N.C.B. Sub Zone, Mandi, Himachal Pradesh vs. Firoz Khan @ Amjad Khan and Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 20:18:02 :::HCHP 2another, whereby both the accused stand convicted of the offence punishable under the provisions of Section 20(b)(ii)(C) of the of the Narcotic Drugs and Psychotropic .
Substances Act, 1985 (hereinafter referred to as the Act) and sentenced to undergo rigorous imprisonment for a period of 10 years and pay fine of `1,00,000/- each and in default of payment of fine to undergo rigorous of imprisonment for a period of one year, they have filed the present appeal under the provisions of Section 374 of the rt Code of Criminal Procedure, 1973.
2. It is the case of prosecution that on 19.6.2012, secret information was received in the office of Narcotics Control Bureau, Mandi which was reduced into writing and forwarded to the Superior Officer vide memo (Ext. PW-4/A).
Virender Singh, Intelligence Officer (PW-5) formed a raiding party. Amongst others, police officials Kuldeep Sharma, Superintendent NCB (PW-4) and Roshan Lal Negi, Intelligence Officer (PW-6) were members of the party. Also two independent witnesses namely Deepak (PW-1) and Sandy (not examined) were associated. Secret information was to the effect that the accused who were travelling in a bus were carrying charas in a bag. Accordingly naaka was set up at a place known as Dhelu Mor, tehsil Jogindernagar.
At about 9.30 a.m. two persons carrying bag packs got ::: Downloaded on - 15/04/2017 20:18:02 :::HCHP 3 down from the bus and after apprising them of their statutory rights and obtaining their consent (memos Ext.
PW-5/C and 5/D), accused were searched. From the bag .
carried by them, charas weighing 4.7 k.g. was recovered.
Two samples of 25 grams each were drawn. Samples and the bulk parcel were sealed with separate seals and taken into possession vide memo (Ext. PW-4/C). Test memo (Ext.
of PW-2/B), in triplicate, was filled up and the accused arrested vide memos (Ext. PW-5/H and 5/J). Virender Singh (PW-5) rt deposited the case property with the N.C.B. Maalkhana Chandigarh and obtained a receipt (Ext. PW-5/S). Constable Brij Bhushan (PW-2) took the sample for chemical analysis and deposited it at Central Revenues Control Laboratory New Delhi on 22.6.2012 vide receipt (Ext. PW-2/C). With the receipt of the report of the Chemical Analyst (Ext. PW-3/A) and completion of investigation, which prima facie revealed complicity of the accused in the alleged crime, challan was presented in the Court for trial.
3. Accused were charged for having committed an offence punishable under the provisions of Section 20(b)(ii)(c) of the Act, to which they did not plead guilty and claimed trial.
4. In order to prove its case, in all, prosecution examined six witnesses and statements of the accused ::: Downloaded on - 15/04/2017 20:18:02 :::HCHP 4 under Section 313 Cr. P.C. were also recorded, in which they took plea of innocence and false implication. No evidence in defence was led by them.
.
5. Appreciating the material on record, including the testimonies of the witnesses, trial Court convicted both the accused of the charged offences and sentenced as aforesaid. Hence, the present appeal.
of
6. We have extensively heard learned counsel appearing on both the sides and perused the record.
7. rt Mr. Sunil Awasthi, learned counsel for the appellant assails the judgment on the grounds that: (i) With the independent witness having not supported the case of the prosecution, conviction of the accused is bad in law; (ii) Non examination of the Officer Incharge of the Maalkhana has rendered the prosecution case to be fatal; and (iii) The contraband substance was not analyzed to be charas.
8. From the report of the chemical examiner (Ext.
PW-3/A), it is quite apparent that the sample analyzed by the Central Revenues Control Laboratory, New Delhi was found to be charas. Testimony of S. K. Singh, Chemical Analyst (PW-3) is clear to such effect. Hence contention of the learned counsel that the contraband substance was not analyzed as charas, only merits rejection.
::: Downloaded on - 15/04/2017 20:18:02 :::HCHP 59. When we peruse the testimony of Virender Singh (PW-5), we find the witness to have uncontrovertedly established receipt of secret information on 19.6.2012, .
which was reduced into writing (Ext. PW-4/A) and placed before Kuldeep Sharma, Superintendent NCB (PW-4) who endorsed the same (Ext. PW-4/B). Quite apparently information was with regard to trafficking of narcotic of substance carried in a bus from Baijnath to Jogindernagar. It was specific to the extent that two persons who were rt carrying black coloured bags would deboard the bus at Dhelu Mor, Joginder Nagar.
10. Pursuant to the aforesaid information Kuldeep Sharma, Superintendent NCB (PW-4) himself constituted a raiding party comprising of Virender Singh, Intelligence Officer (PW-5) and Roshan Lal Negi, Intelligence Officer (PW-
6). He also associated two independent witnesses namely Sandy and Deepak (PW-1).
11. Naaka was set up and as is evident from the testimony of Kuldeep Sharma, when the bus stopped at Dhelu Mor, the accused who got down from the bus were apprehended. They were carrying black coloured bags in their hands. On inquiry they disclosed their names and other particulars. Virender Singh (PW-5) apprised them of their statutory rights (Section 50 of the Act) vide memos ::: Downloaded on - 15/04/2017 20:18:02 :::HCHP 6 (Ext. PW-5/C and 5/D) and they consented to be searched by the police party present on the spot. From the bag carried by accused Firoz Khan, charas weighing 4.7 k.g.
.
was recovered which was taken into possession vide recovery memo (Ext. PW-4/C). Same was signed by the Officer, two independent witnesses as also the accused.
Two samples of 25 grams each were separated and marked of as Mark A-1 and Mark A-2 and sealed with seal of "Narcotics Control Bureau Chd-4". The remaining bulk parcel was also rt sealed with the same seal impression and marked as Lot-A. The seal belonged to Roshan Lal Negi, Intelligence Officer (PW-6) of the Narcotics Control Bureau. Three seals were embossed and signatures of both the accused and the witnesses also taken on the samples and bulk parcel.
Panchnaama (Ext. PW-4/E) was prepared and test memo (Ext. PW-2/B) in triplicate filled up. Accused were arrested vide memos (Ext. PW-5/H and 5/J). These facts are evidently clear from the testimony of Virender Singh, Intelligence Officer (PW-5) and duly corroborated by Kuldeep Sharma, Superintendent NCB (PW-4) and Roshan Lal Negi, Intelligence Officer (PW-6). There is no contradiction whatsoever with regard to the same. Their testimonies are clear, consistent and cogent. They fully inspire in ::: Downloaded on - 15/04/2017 20:18:02 :::HCHP 7 confidence. Their statements are believable and the witnesses reliable.
12. Our attention is invited to the contradiction in .
the statement of Deepak (PW-1) who states that on the asking of one Harish he had signed the document only as a formality and no recovery took place in his presence.
Witness was declared hostile and cross examined by the of counsel for the Narcotics Control Bureau. We do not believe his version, to the contrary, to be true. He admits his rt signatures on all the documents, including the parcels exhibited in the Court. Who is this Harish he does not explain. Why would he sign the papers for it is not his case that he was intimidated or threatened by the police. In fact, he is categorical that "... my signature were obtained on blank paper. I was not put under any threat and fear when my signature were obtained." No explanation for signing blank papers is forthcoming on record and in any case the Investigating officer has testified to the signing of such documents only after compliance of and in accordance with the procedure.
13. The apex Court in Ashok alias Dangra Jaiswal vs. State of Madhya Pradesh, (2011) 5 SCC 123 has held that seizure witnesses turning hostile may not be very significant ::: Downloaded on - 15/04/2017 20:18:02 :::HCHP 8 by itself, as it is not an uncommon phenomenon in criminal trials, particularly in cases relating to NDPS Act.
14. Further in Yomeshbhai Pranshankar Bhatt vs. .
State of Gujarat, (2011) 6 SCC 312 the apex Court has held that evidence of a hostile witness may contain elements of truth and should not be entirely discarded. Their Lordships have held that:
of "22. The learned counsel for the appellant further submitted the doctor had not given his written opinion that the deceased was fit enough to give her rt statement. Though orally, the doctor said so. Relying on this part of the evidence especially the evidence of the husband of the deceased, the learned counsel for the appellant submitted that even though the husband may have been declared hostile, the law relating to appreciation of evidence of hostile witnesses is not to completely discard the evidence given by them. This Court has held that even the evidence given by hostile witness may contain elements of truth.
23. This Court has held in State of U.P. vs. Chetram and others, AIR 1989 SC 1543, that merely because the witnesses have been declared hostile the entire evidence should not be brushed aside. [See para 13 at page 1548]. Similar view has been expressed by three-judge Bench of this Court in Khujji alias Surendra Tiwari vs. State of Madhya Pradesh, [AIR 1991 SC 1853]. At para 6, page 1857 of the report this Court speaking through Justice Ahmadi, as His Lordship then was, after referring to various judgments of this Court laid down that just because ::: Downloaded on - 15/04/2017 20:18:02 :::HCHP 9 the witness turned hostile his entire evidence should not be washed out."
[Emphasis supplied]
15. Furthr in Bhajju alias Karan Singh vs. State of .
Madhya Pradesh, (2012) 4 SCC 327 the Court held that evidence of hostile witnesses can also be relied upon by the prosecution to the extent to which it supports the prosecution version of the incident. It further held that:
of "36. It is settled law that the evidence of hostile witnesses can also be relied upon by the prosecution to the extent to which it supports the prosecution rt version of the incident. The evidence of such witnesses cannot be treated as washed off the records, it remains admissible in trial and there is no legal bar to base the conviction of the accused upon such testimony, if corroborated by other reliable evidence. Section 154 of the Act enables the Court, in its discretion, to permit the person, who calls a witness, to put any question to him which might be put in cross-examination by the adverse party.
37. The view that the evidence of the witness who has been called and cross-examined by the party with the leave of the court, cannot be believed or disbelieved in part and has to be excluded altogether, is not the correct exposition of law. The Courts may rely upon so much of the testimony which supports the case of the prosecution and is corroborated by other evidence. It is also now a settled cannon of criminal jurisprudence that the part which has been allowed to be cross-examined can also be relied upon by the prosecution. These ::: Downloaded on - 15/04/2017 20:18:02 :::HCHP 10 principles have been encompassed in the judgments of this Court in the cases:
(a) Koli Lakhmanbhai Chanabhai v. State of Gujarat (1999) 8 SCC 624 .
(b) Prithi v. State of Haryana (2010) 8 SCC 536
(c) Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi) (2010) 6 SCC 1
(d) Ramkrushna v. State of Maharashtra (2007) 13 SCC 525"
of [Emphasis supplied]
16. In Ramesh Harijan vs. State of Uttar Pradesh, (2012) 5 SCC 777 the Court rt held that seizure/recovery witnesses though turning hostile, but admitting their signatures/thumb impressions on recovery memo, could be relied on by prosecution and that:
"23. It is a settled legal proposition that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross examine him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on a careful scrutiny thereof. (Vide: Bhagwan Singh v. The State of Haryana, AIR 1976 SC 202; Rabindra Kumar Dey v. State of Orissa, AIR 1977 SC 170; Syad Akbar v. State of Karnataka, AIR 1979 SC 1848; and Khujji @ Surendra Tiwari v. State of Madhya Pradesh, AIR 1991 SC 1853).::: Downloaded on - 15/04/2017 20:18:02 :::HCHP 11
24. In State of U.P. v. Ramesh Prasad Misra & Anr., AIR 1996 SC 2766, this Court held that evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused .
but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon. A similar view has been reiterated by this Court in Balu Sonba Shinde v. State of Maharashtra, (2002) 7 SCC 543; Gagan Kanojia & Anr. v. State of of Punjab, (2006) 13 SCC 516; Radha Mohan Singh @ Lal Saheb & Ors. v. State of U.P., AIR 2006 SC 951;
Sarvesh Narain Shukla v. Daroga Singh & Ors., AIR rt 2008 SC 320; and Subbu Singh v. State by Public Prosecutor, (2009) 6 SCC 462. Thus, the law can be summarised to the effect that the evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defence. (See also: C. Muniappan & Ors. v. State of Tamil Nadu, AIR 2010 SC 3718; and Himanshu @ Chintu v. State (NCT of Delhi), (2011) 2 SCC 36)"
[Emphasis supplied]
17. It is also a settled proposition of law that sole testimony of police official, which if otherwise is reliable, trustworthy, cogent and duly corroborated by other admissible evidence, cannot be discarded only on the ground that he is a police official and may be interested in the success of the case. It cannot be stated as a rule that a police officer can or cannot be a sole eye-witness in a criminal case. It will always depend upon the facts of a ::: Downloaded on - 15/04/2017 20:18:02 :::HCHP 12 given case. If the testimony of such a witness is reliable, trustworthy, cogent and if required duly corroborated by other witnesses or admissible evidences, then the .
statement of such witness cannot be discarded only on the ground that he is a police officer and may have some interest in success of the case. It is only when his interest in the success of the case is motivated by overzealousness to of an extent of his involving innocent people, in that event, no credibility can be attached to the statement of such witness.
rt
18. It is not the law that Police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption applies as much in favour of a police officer as any other person.
There is also no rule of law which lays down that no conviction can be recorded on the testimony of a police officer even if such evidence is otherwise reliable and trustworthy. Rule of prudence may require more careful scrutiny of their evidence. If such a presumption is raised against the police officers without exception, it will be an attitude which could neither do credit to the magistracy nor good to the public, it can only bring down the prestige of police administration.
::: Downloaded on - 15/04/2017 20:18:02 :::HCHP 1319. Wherever, evidence of a police officer, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, can form basis of conviction and .
absence of some independent witness of the locality does not in any way affect the creditworthiness of the prosecution case. No infirmity attaches to the testimony of the police officers merely because they belong to the police of force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of rt the police officials, if found reliable, unless corroborated by some independent evidence. Such reliable and trustworthy statement can form the basis of conviction. [See:
Govindaraju alias Govinda v. State by Srirampuram Police Station and another, (2012) 4 SCC 722; Tika Ram v. State of Madhya Pradesh, (2007) 15 SCC 760; Girja Prasad v. State of M.P., (2007) 7 SCC 625); and Aher Raja Khima v. State of Saurashtra, AIR 1956].
20. Apex Court in Tahir v. State (Delhi), (1996) 3 SCC 338, dealing with a similar question, held as under:-
"6. ... .In our opinion no infirmity attaches to the testimony of the police officials, merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. The Rule of Prudence, however, only requires a more careful scrutiny of their evidence, since ::: Downloaded on - 15/04/2017 20:18:02 :::HCHP 14 they can be said to be interested in the result of the case projected by them. Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent .
witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case."
21. We have found the testimonies of the police of officials to be inspiring in confidence. Insofar as the independent witness is concerned, he admits his signatures on the document.
rt His version of having signed the documents in blank, we do not believe. Preparation of the document, in accordance with law, stands proven on record by the police officials. It is not a case where we find two views emerging on record, with regard to the recovery of the contraband substance. The only consistent view is of recovery of contraband substance from the conscious possession of the accused. Why would witness Deepak sign blank document, remains unexplained on record.
22. Thus, in view of the law laid down by the apex Court, as discussed supra, we are of the considered view that the evidence on record qua signatures of the independent witness can be relied upon.
23. Undisputedly the accused persons are not residents of the State of Himachal Pradesh. They belong to ::: Downloaded on - 15/04/2017 20:18:02 :::HCHP 15 District Baghpat, U.P. Their presence on the spot is not even disputed by them as is evident from their line of cross examination. Police had no reason to falsely implicate them .
in the present case. What were they doing on the spot at the relevant time remains undisclosed by them. It is nobodies case that the accused were physically lifted from Baghpat (U.P.) and brought to Jogindernagar (H.P.), a far off of place, for false implication. The accused could have very well led some evidence justifying their presence in the State rt of Himachal Pradesh and more so at Jogindernagar. To discharge the statutory burden under Section 35 of the Act it was incumbent upon the accused to have disclosed all such facts which they failed to do so warranting presumption unfavourable to them as provided under Section 114 of the Indian Evidence Act.
24. Hence in our considered view, prosecution has been able to discharge the initial burden of proving the recovery of contraband substance from the conscious possession of the accused.
25. We find that the Investigating Officer had also informed the superior officer about the incident, which fact is evident from the testimonies of Virender Singh, Intelligence Officer (PW-5) and Roshan Lal Negi, Intelligence Officer (PW-6) . It is true that Sandy has not been examined ::: Downloaded on - 15/04/2017 20:18:02 :::HCHP 16 in Court and the learned Special Public Prosecutor (NCB) gave him up as accused was able to exercise some influence over him. But then such fact would make no .
difference as we find the prosecution to have materially proved and established recovery of the contraband substance from the conscious possession of the accused.
26. Hence, it cannot be said that the trial Court erred of in correctly and completely appreciating the testimonies of the prosecution witnesses.
27. rt Coming to the second point, we find Virender Singh, Intelligence Officer (PW-5) to have categorically deposed that:-
... "The case property was deposited with N.C.B. Malkhana Chandigarh on 21.6.2012 vide receipt Ex.PW5/S. Hawaldar Brij Bhushan handed over the receipt Ex. PW2/C to me after depositing the sample with C.R.C.L. Delhi. The report of C.R.C.L. Delhi is Ex.PW3/A. I have also prepared Panchanama Ex.PW5/T."
28. We find that there is no cross examination to this part of the statement. In fact, in cross examination, witness has clarified that in the office of NCB Mandi there was no maalkhana and as such the case property had to be deposited at the NCB Office, Chandigarh. From the testimony of Brij Bhushan (PW-2) it stands established that ::: Downloaded on - 15/04/2017 20:18:02 :::HCHP 17 sample A-1 sealed with four seals of N.C.B. CHD along with test memo, in duplicate, was taken for chemical analysis vide letter (Ext. PW-2/A). Same was deposited in the .
laboratory on 22.6.2012 and receipt (Ext. PW-2/C) obtained.
Witness has categorically deposed that so long as the case property remained in custody, it was safe.
29. We find from the testimony of S.K. Singh, of Chemical Examiner, C.R.C.L. New Delhi (PW-3) that packet Ex. P1 had same number of seals which were embossed by rt Virender Singh (PW-5). Seals were found to be intact. It be only observed that the very same case property was produced in Court and exhibited. As such, there is no doubt with regard to the case property.
30. Hence, from the material placed on record, it stands established by the prosecution, beyond reasonable doubt, by leading clear, cogent, convincing and reliable piece of evidence, that accused were carrying contraband substance i.e. charas weighing 4.7 kilograms.
31. For all the aforesaid reasons, we find no reason to interfere with the well reasoned 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 ::: Downloaded on - 15/04/2017 20:18:02 :::HCHP 18 parties. Findings of 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.
of (Sanjay Karol), Judge.
rt (Ajay Mohan Goel),
Judge.
May 9 , 2016 (PK)
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