Himachal Pradesh High Court
Amar Chand vs State Of Himachal Pradesh on 15 September, 2016
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Appeal No. 283/2006
Reserved on: September 14, 2016
Decided on: September 15, 2016
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Amar Chand ...... Appellant
Versus
State of Himachal Pradesh ........Respondent
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Coram:
Hon'ble Mr. Justice Rajiv Sharma, Judge
of
Whether approved for reporting? 1 yes.
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For the appellant : Mr. Sunil Mohan Goel, Advocate.
For the respondent rt : Mr. Parmod Thakur, Additional
Advocate General.
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Rajiv Sharma, Judge:
The instant appeal has been filed against Judgment dated 23.8.2006 rendered by the learned Special Judge, Fast Track Court, Kullu, Himachal Pradesh in Sessions Trial No. 12 of 2005,whereby the appellant-accused (hereinafter referred to as 'accused' for convenience sake), who was charged with and tried for the commission of offence under Sections 17 and 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as 'Act' for convenience sake), has been convicted and sentenced to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs. 1,000/- for the commission of offence under Section 20(A) of the Act, and in default of payment of fine, to further undergo imprisonment for one month. He has further been convicted and sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.10,000/-, for the 1 Whether the reporters of the local papers may be allowed to see the judgment? ::: Downloaded on - 15/04/2017 21:14:12 :::HCHP 2 commission of offence under Section 17(b) of the Act, and, in default of payment of fine, to further undergo imprisonment for six months. Both the sentences were ordered to run concurrently.
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2. Prosecution case, in a nutshell, is that on 19.7.2004, SHO Jagdish Chand was present half a kilometre from Manali from 15 Mile bridge alongwith HC Hari Singh and HHC Uttam Singh. At about 10.15 AM, a person crossed 15 Mile bridge and was on his way towards Manali. On seeing the police, he got perplexed and of tried to run away. He was nabbed. Accused was apprised of his right to be searched before a Magistrate or a Gazetted Officer since the rt police was suspecting that he was carrying contraband on his person. Accused consented to be searched by the police present on the spot. Written consent memo was prepared in this behalf. SHO Jagdish Chand gave his personal search to the accused and no incriminating article was found in his person. Personal search of the accused was conducted in the presence of witnesses Hari Singh and Uttam Singh. Two polythene envelopes were recovered from the right pocket of the jacket of accused. On checking, it was found containing brown sugar and Charas. Recovered brown sugar was weighed. It weighed 20 grams. Two samples of brown sugar, 2 grams each were separated from the recovered brown sugar and both the samples were sealed in the parcels on the spot. remaining brown sugar was sealed separately in the parcel. Thereafter, recovered Charas was weighed. It weighed 60 grams. Two samples of Charas, 10 grams each were separated from the recovered Charas and both the samples were sealed in separate parcels. Remaining Charas was also sealed in a cloth parcel. Four seal impressions of ::: Downloaded on - 15/04/2017 21:14:12 :::HCHP 3 'H' were affixed on each parcel. Sample seal impressions were obtained separately. NCB form in triplicate was filled in. Seal, after use, was handed over to Hari Singh. All the six sealed parcels were .
taken into possession by the police and recovery memo was prepared in this behalf which was signed by the accused and the witnesses. No independent witnesses could be associated since it was a secluded place. Rukka was prepared on the spot and sent to Police Station, Manali, on the basis of which FIR was registered.
of Jagdish Chand thereafter went to Shamshi alongwith accused. House of the accused was searched in the presence of two rt independent witnesses namely Sanjeev Verma and Leeladhar Thakur. Currency notes of Rs.95,280/-, one camera, head-torch, CD Player and one scale were recovered from the house of the accused. Recovery memo to this effect was prepared. Incriminating articles were deposited in the Malkhana at Police Station, Manali. MHC Mohar Singh handed over sealed sample parcels of brown sugar and Charas alongwith NCB form in triplicate, copy of FIR and seizure memo and sample seal impressions to Constable Ishwar Dass for being carried for chemical examination to chemical Laboratory Chandigarh and Kandaghat. Ishwar Dass deposited the sealed samples of brown sugar alongwith relevant documents at CFSL Chandigarh and also deposited sealed samples of Charas alongwith the relevant documents at CTL Kandaghat. Investigation was completed. Challan was put in the Court after completing all the codal formalities.
3. Prosecution has examined as many as seven witnesses to prove its case against the accused. Accused was also examined ::: Downloaded on - 15/04/2017 21:14:12 :::HCHP 4 under Section 313 CrPC. He pleaded innocence. Accused was convicted as noticed above. Hence, this appeal.
4. Mr. Sunil Mohan Goel, Advocate, has vehemently .
argued that the prosecution has failed to prove its case against the accused.
5. Mr. Parmod Thakur, Additional Advocate General has supported the judgment dated 23.8.2006.
6. I have heard the learned counsel for the parties and of also gone through the Judgment and record carefully.
7. Constable Ishwari Ram (PW-2) testified that on rt 20.7.2004, MHC Police Station, Manali handed over to him one sample of brown sugar pertaining to the case duly sealed with four seal impressions of 'H', NCB form in triplicate, sample of seal and other documents vide RC No. 76/04 with the direction to carry the same to CFSL Chandigarh. Vide RC No. 75/04, MHC Police Station Manali also handed over to him a sample of Charas pertaining to the case sealed with four seal impressions of 'H', NCB form in triplicate and sample seals and other documents with the direction to carry the same to CTL Kandaghat. On 21.7.2004, he deposited the sample of brown sugar and other related documents at CFSL Chandigarh and obtained receipt. On 22.7.2004, he deposited the case property at CTL Kandaghat against receipt.
8. Leeladhar (PW-3) deposed that he was running a ply board and other construction material shop in the name and style of M/s Shobia Ply-board Company at Shamshi. He knew the accused. On 19.7.2004, police conducted search of the house of the accused at Shamshi and recovered Rs.95,280/- but other articles were not ::: Downloaded on - 15/04/2017 21:14:12 :::HCHP 5 recovered. Sanjeev Verma was also present at that time. Police prepared seizure memo Ext. PW-3/A. He identified his signatures on Ext. PW-3/A in red circle portion 'A'. Amar Chand and Sanjeev also .
signed the memo.
9. PW-4 MHC Uttam Singh testified that he alongwith SHO Jagdish Chand and HC Hari Singh was present about half kilometre from 15 Miles towards Manali in connection with traffic checking. At about 10.15 AM, a person was spotted coming after of crossing the 15 Miles bridge towards Manali side. On seeing the police party, he became perplexed and tried to run away. He was rt nabbed. Accused was apprised by the IO whether he wanted to be searched before a Magistrate or a Gazetted Officer. He opted to be searched by the police on the spot, vide Ext. PW-4/A. He was sent for calling witnesses near Tibetan colony. He met a Tibetan lady but she refused to become a witness. He and Hari Singh were associated as witnesses in the case. IO gave his personal search to the accused and thereafter search of accused was conducted. One polythene packet was recovered from the external pocket of his jacket, which he was wearing. On checking said polythene packet, brown sugar and Charas were recovered. Brown sugar and Charas were separately packed in polythene packet. Firstly, brown sugar was weighed. It weighed 20 grams. Two samples of 2 grams each were taken out of recovered brown sugar for chemical test and remaining bulk brown sugar was separately packed and sealed by affixing four seal impressions of 'H'. Thereafter, Charas was weighed. It weighed 60 grams. Two samples of 10 grams each were drawn out of recovered Charas. Remaining Charas was put in the same polythene ::: Downloaded on - 15/04/2017 21:14:12 :::HCHP 6 packet and samples and remaining Charas were separately packed and sealed by putting four seal impressions of 'H' on each parcel. Recovered Charas was in the shape of Chapati and sticks. NCB form .
of brown sugar and Charas were separately prepared. Sample seals were taken. Seal, after use, was handed over to Hari Singh. Case property was taken into possession vide Ext. PW-4/C. IO prepared Rukka and handed over it to him, which he took to Police Station Manali for registration of the case. Case property was produced of before the Court during the examination of this witness. In his cross-examination, he deposed that the Tibetan colony was 3-4 kms rt towards Kullu side. He has not stated to the police that he was sent by IO for calling the witness. He denied the suggestion that every minute vehicles ply on the road. He admitted that the vehicles plied on this road but at that time, no vehicle crossed the spot.
10. HC Mohar Singh (PW-5) testified that on 19.7.2004, a Rukka was brought by HHC Uttam Singh, on the basis of which he registered FIR Ext. PW-5/A. On the same day, six sealed parcels were deposited by SHO Jagdish Chand having seal impressions of 'H', four in number, on each parcel, NCB form in triplicate and sample seals. He also deposited one lady purse containing Rs.95,280/-, another bag having camera, CD Player, head-light torch and scale. He deposited the same vide entry No. 291 of the Malkhana Register. He has proved Ext. PW-5/C. On 20.7.2004, he remitted sample parcel of brown sugar, NCB form in triplicate, copy of FIR, seizure memo and sample seal vide RC No. 76/04 Ext. PW- 5/D to CFSL Chandigarh through Constable Ishwar Dass. On the same date, one sample parcel of Charas alongwith NCB form in ::: Downloaded on - 15/04/2017 21:14:12 :::HCHP 7 triplicate, seizure memo, copy of FIR and sample seal of 'H' were sent to CTL Kandaghat through Constable Ishwar Dass vide RC No. 75/04.
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11. PW-6 SI/SHO Jagdish Chand also testified the manner in which accused was apprehended, search, seizure and sampling proceedings were completed at the spot. He prepared Rukka. Rukka was sent to the Police Station through PW-4 Uttam Singh. Search of the house of the accused was also conducted. Rs.95,280/-, a of camera, head torch, CD Player and a scale were recovered from his house which were taken into possession vide memo Ext. PW-3/A. In rt his cross-examination, he deposed that accused was spotted on National Highway after he had crossed the bridge. Accused was spotted moving on the bridge. Proceedings were completed on the spot. These were completed on the parapet on the road. He proceeded to Bhuntar for taking search of house of the accused alongwith HC Hari Singh and HHC Uttam Singh. He also made inquiry from the Patwari regarding the house and he informed that accused was having no land in his name. He admitted that land over which the house was situate and the house belonged to the father of the accused.
12. A.K. Dalela, Junior Scientific Officer (PW-7) has testified that on 21.7.2004, their laboratory received one sealed parcel, sealed with four seals of 'H' alongwith specimen seals and other case related documents through Constable Ishwari Ram. Case was marked to him. He proved report, Ext. PY.
13. Accused was apprehended at 10.15 AM when he was crossing 15 Mile bridge towards Manali side. He was apprised of his ::: Downloaded on - 15/04/2017 21:14:12 :::HCHP 8 right to be searched before a Magistrate or a Gazetted Officer. Vide Ext. PW-4/A, he gave consent to be searched by the police. According to PW-4 HHC Uttam Singh, he went in search of .
independent witnesses. He met one Tibetan lady but she refused to become a witness. He has admitted that though it was a National Highway but at that time, the vehicles did not cross the spot. Statement of PW-4 HHC Uttam Singh regarding the manner in which accused was apprehended, search was conducted etc. is duly of corroborated by PW-6 Jagdish Chand. PW-4 Uttam Singh and PW-6 Jagdish Chand are official witnesses. Their statements inspire rt confidence. PW-4 Uttam Singh has tried to associate independent witness but she refused to become a witness.
14. Statements of the official witnesses are trustworthy and inspire confidence. Their lordships of the Hon'ble Supreme Court in the case of Karamjit Singh vs. State (Delhi Administration), reported in AIR 2003 SC 1311, have held that there is no principle of law that without corroboration by independent witnesses statements of official witnesses cannot be relied upon. Presumption that person acts honestly applies as much in favour of police personnel as of other persons. It has been held as follows:
" 8. Shri Sinha, learned senior counsel for the appellant, has vehemently urged that all the witnesses of recovery examined by the prosecution are police personnel and in absence of any public witness, their testimony alone should not be held sufficient for sustaining the conviction of the appellant. In our opinion the contention raised is too broadly stated and cannot be accepted. The testimony of police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as ::: Downloaded on - 15/04/2017 21:14:12 :::HCHP 9 much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds. It will all depend upon the facts and circumstances of each case and no principle of general application can be laid down. PW11 .
Pratap Singh has clearly stated in the opening part of his examination-
in-chief that ACP Shakti Singh asked some public witnesses to accompany them but they showed their unwillingness. PW10 Rajinder Prasad, SI has given similar statement and has deposed that despite their best efforts no one from public was willing to join the raiding party due to the fear of the terrorists. Exactly similar statement has been given by PW9 R.D. Pandey. We should not forget that the incident took place in November 1990, when terrorism was at its peak in Punjab of and neighbouring areas. The ground realities cannot be lost sight of that even in normal circumstances members of public are very reluctant to accompany a police party which is going to arrest a criminal or is embarking upon search of some premises. At the time rt when the terrorism was at its peak, it is quite natural for members of public to have avoided getting involved in a police operation for search or arrest of a person having links with terrorists. It is noteworthy that during the course of the cross- examination of the witness the defence did not even give any suggestion as to why they were falsely deposing against the appellant. There is absolutely no material or evidence on record to show that the prosecution witnesses had any reason to falsely implicate the appellant who was none else but a colleague of theirs being a member of the same police force. Therefore, the contention raised by Shri Sinha that on account of non-examination of a public witness, the testimony of the prosecution witnesses who are police personnel, should not be relied upon has hardly any substance and cannot be accepted."
15. All the codal formalities have been completed on the spot strictly in accordance with law. There are no major contradictions in the statements of PW-4 Uttam Singh and PW-6 Jagdish Chand. PW-4 Uttam Singh has deposed that only one polythene packet was recovered from the external pocket of the jacket worn by the accused. PW-6 has deposed that personal search was conducted and two polythene packets were recovered. This is a ::: Downloaded on - 15/04/2017 21:14:12 :::HCHP 10 minor contradiction. Accused was apprehended on 19.7.2004 and statements of PW-4 Uttam Singh and PW-6 Jagdish Chand were recorded on 2.8.2005. Thus, there is bound to be memory loss with .
the passage of time.
16. Mr. Sunil Mohan Goel, Advocate, has also argued that the NCB form is not in accordance with the law. Court has gone through the NCB form Ext. PW-6/D. There is no illegality in the same. Case property was handed over to the MHC. He has entered of the same in Malkhana Register. Thereafter, case property was sent to CFSL Chandigarh and CTL Kandaghat. Reports of the rt laboratories are Ext. PX and PY.
17. Mr. Sunil Mohan Goel has also argued that since the IO has told the accused that he suspected that he was carrying Charas and other contraband, thus, he had prior knowledge. In other words, his submission that Section 42 of the Act was required to be complied. However, Court has also gone through the Ext. PW-4/A. Same is in conformity with the law. Accused was required to be told that the police suspected that he was carrying some contraband and he was required to be given an option to be searched either before a Magistrate or a Gazetted Officer. Thus, there is no illegality in Ext. PW-4/A.
18. Prosecution has proved beyond reasonable doubt that the contraband was recovered from the conscious and exclusive possession of the accused.
19. There is no occasion for this Court to interfere with the well reasoned judgment of the learned trial Court. ::: Downloaded on - 15/04/2017 21:14:12 :::HCHP 11
20. Accordingly, there is no merit in the present appeal and the same is dismissed, so also the pending applications, if any. Bail bonds of accused are cancelled.
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(Rajiv Sharma) Judge September 15, 2016 (vikrant) of rt ::: Downloaded on - 15/04/2017 21:14:12 :::HCHP