Himachal Pradesh High Court
Lal Singh vs State Of Himachal Pradesh on 20 December, 2005
Equivalent citations: 2006(3)SHIMLC244
Author: Abhilasha Kumari
Bench: Lokeshwar Singh Panta, Abhilasha Kumari
JUDGMENT Abhilasha Kumari, J.
1. This appeal is directed against the judgment of the learned Sessions Judge, Kullu (Special Judge), dated 3.3.2003.
2. Briefly stated, the case of the prosecution is that the accused Lal Singh has been charge-sheeted under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereafter referred to as 'the NDPS Act', on the allegations that on 26.3.2002 at 10 a.m. he was found in conscious and exclusive possession of 12.500 kg. of 'Charas' at Dohlu Nalah.
3. The prosecution story, which emerges from the record, is that on 26.3.2002, a police party headed by HC Lal Singh (PW-12), consisting of Sarwan Kumar, HC Parkash Chand (PW-10), constable Om Prakash (PW-11), constable Mohinder Pal, Dina Nath and Gian Chand, volunteers of Himachal Home Guard, was present at Dohlu Nalah at 10 a.m. when they spotted the accused coming along the side of the river from the direction of the Tibetan Colony towards Kullu with a bag on his shoulder. On becoming suspicious, HC Lal Singh directed the officials accompanying him to overpower the accused, who on alarm being raised by the police party sat down. The accused was apprised of his being in possession of some contraband and HC Lal Singh gave him the option qua Memo Ex. PW-10/A, whether he wanted to be searched before a Magistrate or a Gazetted Officer. The accused consented to be searched by the police. Thereafter, the Investigating Officer, qua Memo Ex. PW-10/B gave his search to the accused and then proceeded to search the bag being carried by the accused. On such search of the bag, it was found containing four packets wrapped in Khaki paper and one black coloured polythene packet, all of which contained 'Charas' in the shape of tablets, sticks, biscuits and chappatis. The recovered 'Charas' was weighed there and then and found to be 12.500 kgs. Two samples of 25 grams each were separated and packed in separate packets, which were sealed by affixing three seals of impression 'H'. The balance 'Charas' alongwith the bag of the accused was packed in a separate packet and sealed with seal impression 'H'. The empowered Officer HC Lal Singh filled up the NCB forms (Ex. PW-12/A), in triplicate, and retained specimen seal impression. The seal was entrusted to HC Parkash Chand. The recovered 'Charas' packets were taken into possession vide seizure Memo. Ex. PW-10/C, copy of which was given to the accused. The accused was informed of the offence committed and punishment provided vide Memo Ex. PW-10/E. Thereafter, the Ruka was drafted by HC Lal Singh, which is, Ex. PW-12/B, and sent to Police Station, Kullu, through constable Om Parkash (PW-11) for registration of the case. Constable Om Parkash delivered the Ruka to Sub-Inspector Kaur Singh (PW-2), who lodged FIR Ex. PW-2/A and made endorsement Ex. PW-2/B on the Ruka.
4. Further, the case of the prosecution is that on the same day, the Investigating Officer, on return to the Police Station, produced the case property before Sub-Inspector Kaur Singh who reseated it and retained the sample seal Ex. PW-2/C. Special Report of the case was sent through constable Mohinder Singh to Dy. S.P., Manali. After resealing the case property Sub-Inspector Kaur Singh deposited it with MHC Bhim Sen (PW-4) who made the entry Ex. PW-5/B in the Malkhana register. One of the seal sample was sent on 27.3.2002 by MHC Bhim Sen to Central Testing Laboratory (CTL), through constable Lal Singh vide Road Certificate Ex. PW-5/A and on receipt of the report (Ex. PW-3/E) of the Chemical Examiner, the sample sent for examination was opined to be that of 'Charas'. Thereafter, Inspector Roshan Lal moved an application Ex. PW-3/A alongwith inventory Ex. PW-3/B to the learned Chief Judicial Magistrate, Kullu, who forwarded the same to the Judicial Magistrate 1st Class, Manali. The learned Judicial Magistrate 1st Class, Manali, came to Police Station, Manali, and the case property was produced before him. He ordered the drawing of a sample and allowed the application qua order Ex. PW-3/D and issued certificate Ex. PW-3/C.
5. On completion of the investigation and the receipt of the chemical analysis report (Ex. PW-3/E), the challan in the case was prepared and presented against the accused for committing offence punishable under Section 20 of the NDPS Act. The accused was charge-sheeted for committing the offence under Section 20 of the NDPS Act. The accused denied having committed the offence and claimed to be tried.
6. The prosecution examined 12 witnesses in support of its case. In his statement under Section 313 of the Code of Criminal Procedure, the accused denied the recovery of 'Charas' from his possession and also his apprehension by the police party and claimed to be innocent, Three witnesses were examined in his defence.
7. The learned Sessions Judge, after trial, convicted the accused for offence under Section 20 of the NDPS Act and sentenced him to 10 years rigorous imprisonment and a fine of Rs. 1,00,000/- and in default of payment of fine further imprisonment for one year. The accused was given the benefit of set off under Section 428 of the Code of Criminal Procedure for the period during which he remained in custody.
8. Aggrieved by the aforesaid judgment of conviction and sentence passed by the learned Sessions Judge, the accused has assailed the same in the present appeal.
9. We have heard the learned Counsel for the accused and the learned Additional Advocate General for the respondent-State and have also gone through the material on record.
10. The learned Counsel for the accused has assailed the conviction and sentence on the following two grounds:
I. The bulk and samples were stated to have been taken and sealed at the post, however, prosecution witnesses, PW-10 and 12, are contradicting the same and the samples and bulk have been shown to be sealed with seal impression 'H' whereas in Ex. DA, the bulk and samples have been shown to have been sealed with seal impression '4'. These contradictions cast doubt over the seizure, sampling and sealing and, as such, no reliance can be placed on the same.
II. On the basis of the evidence brought on record by the prosecution and the defence, two views are possible. Therefore, the view favourable to the accused has to be preferred over the view favourable to the prosecution.
GROUND No. 1:
11. In support of the first ground urged by the learned Counsel for the accused, reliance has been placed upon the statement of HC Parkash Chand (PW-10), who has stated in his cross-examination that "it is correct that the samples were not taken on the spot" (10th line of Page-17 of the paper-book).
12. A careful scrutiny of the statement of PW-10 shows that this witness has stated that "It is incorrect that the samples were not taken on the spot". The word "correct" is preceded by 'i', which gives the impression that it could have been a typographical error and actually what was meant to be typed was the word "incorrect" but the alphabet 'n' has been left out. From perusal of the original record, it is clear that the statement is "It is 'i' correct that the samples were not taken on the spot". The original record is also in English and there is no Hindi (vernacular) version. Since, it seems that the word "incorrect" has been wrongly typed, due to inadvertent typographical error, we do not think that there is, much substance in this submission of the learned Counsel for the accused.
13. It has been further urged in defence of the accused that the story of the prosecution that the accused was apprehended while coming from the Tibetan Colony and was then overpowered and his bag was searched, from wherein the contraband was recovered is not correct. According to the learned Counsel for the accused, the accused was travelling in a bus and was brought down at the camping site where the bag containing ' Charas', which was lying in the bus, was foisted upon him. In fact, as per the defence version, the accused was sitting in the bus and the bag was found from the centre of the bus. In support of this, reliance has been placed upon the suggestions put to PWs 10, 11 and 12 in this regard. The learned Counsel for the accused has also relied upon the statement of Gian Chand (DW-1), HHG (Himachal Home Guard), who has stated in the examination-in-chief that the said bag was found from the centre of the bus. This witness, according to him, has not supported the case of the prosecution and has not been cross-examined, therefore, it is assumed that his testimony is not disputed. DW-2 Chandu Ram (class-fellow of the accused) also states that the accused was travelling in the bus and the bag was recovered from the middle of the bus. Similarly, DW-3 Bir Singh states that he was asked by one Tola Ram to appear as defence witness.
14. (We have gone through the evidence of the prosecution and defence witnesses carefully.) If the statement of PW-10 HC Parkash Chand is seen, it is clear that he has stated that on 26.3.2002, he alongwith HC Sarwan Kumar, Constable Om Parkash, Constable Mohinder Pal, Home Guards Gian Chand, Mohinder Dev, Dina Ram and HC Lal Singh, were present at Dohlu Nalah for patrolling and one person (who is the accused) was spotted coming from the Tibetan Colony carrying a bag on his shoulder. On the basis of suspicion, HC Lal Singh gave the direction to overpower him and Lal Singh also chased him by raising an alarm and the said person was stopped, on which he sat down. In enquiry, the person disclosed his name to be Lal Singh (accused) and he was given the option to be searched before a Magistrate or a Gazetted Officer. The accused consented in writing that he wanted to be searched by the police. Thereafter, HC Lal Singh gave his personal search to the accused vide Memo Ex. PW-10/B. On search of the bag that the accused was carrying on his shoulder, four packets wrapped in Khaki paper and one packet of polythene of black colour were recovered. On opening of the packets wrapped in Khaki paper, 'Charas' in the shape of biscuits, square in shape was found and on opening of the black-coloured polythene, 'Charas' in the shape of sticks and Chappatis was recovered. On weighing, the 'Charas' turned out to be 12.500 kgs. Thereafter two samples of 25 grams, each were separated, packed and sealed with seal 'H' carrying three seals on each packet and the remaining 'Charas' alongwith Khaki paper and polythene cover alongwith bag were sealed with seal 'H' carrying six seals. This version has not been shattered in the cross-examination of this witness, who has categorically denied all the suggestion put to him by the defence that the accused was not apprehended as per the prosecution story but was apprehended from inside a bus and the bag was lying in the centre of the bus and was foisted upon the accused.
15. PW-11, Constable Om Parkash, who was present on the spot, also supports the version of PW-10 and has categorically denied the suggestions put to him by the learned defence Counsel to the effect that the accused was brought down from the bus at the camping site and that the proceedings were fabricated in the Police Station lateron. Similar is the version of PW-12, HC Lal Singh, who has also stuck to the same version as stated by PWs-10 and 11 and has denied the suggestions, to the contrary, put to him by the learned Counsel for the defence.
16. As regards DW-1, Home Guard Gian Chand, his version does not seem to be reliable and trustworthy in the face of the unshaken version of the official (police) witnesses. It is true that he was also present on patrolling duty on 26.3.2002 when the accused was apprehended but his version is not corroborated by any other evidence or material on record and there is no reason to disbelieve the evidence of PWs-10, 11 and 12 just because they are police witnesses and members of the raiding party. DW-2, Chandu Ram, is class-fellow of the accused, who is stated to have boarded the bus from Manali and his testimony does not in any manner advance the case of the accused. Similar is the case of DW-3, who himself states that he has been asked to depose in favour of the accused at the accused at the behest of one Tola Ram.
17. The learned Additional Advocate General has placed reliance upon Kalapnath Rai v. State (Through CBI) of the said judgment reads as under:
88. There can be no legal proposition that evidence of police officers, unless supported by independent witnesses, is unworthy of acceptance. Non- examination of independent witness or even presence of such witness during police raid would cast an added duty on the Court to adopt greater care while scrutinising the evidence of the police officers. If the evidence of the police officer is found acceptable it would be an erroneous proposition that the Court must reject the prosecution version solely on the around that no independent witness was examined. In Pradeep Narayan Madgaonkar to which one of us (Mukherjee, J.) was a party, the aforesaid position has been stated in unambiguous terms, the relevant portion of which is extracted below: (SCC p. 261, Para 11) Indeed, the evidence of the official (police) witnesses cannot be discarded merely on the ground that they belong to the police force and are, either interested in the investigating or the prosecuting agency but prudence dictates that their evidence needs to be subjected to strict scrutiny and as far as possible corroboration of their evidence in material particulars should be sought. Their desire to see the success of the case based on their investigation, requires greater care to appreciate their testimony.
18. There can be no quarrel with this proposition of law. The facts of the present case and the testimony of the police witnesses reveal that their version is trustworthy and reliable and since it is also corroborated by other evidence on record such as the seizure memo, the entry in the Malkhana register, the report of the Chemical Examination qua the samples of 'Charas' sent for examination, there is no reason to doubt the testimony of the said witnesses. Accordingly, the contention of the learned Counsel for the accused that the prosecution story of the prosecution is false and concocted does not seem to be tenable in the face of the overwhelming evidence to the contrary.
19. The learned Counsel for the accused has further argued that PW-12 HC Lal Singh, in his examination-in-chief, states "The samples were sealed with three seals of 'H'. The remaining Charas alongwith the bag was packed and sealed with seal 'H' carrying six seals. The Charas and sample packets were taken into possession vide Memo Ex. PW-10/C." Whereas, PW-12 HC Lal Singh in his cross-examination states "It is correct that on Ex. DA there is seal of the Police Station. It is correct that on Ex. DA qua ninth line from bottom vide A to A, it has been shown that the Charas packet was containing seal of digit '4'". According to the learned Counsel for the accused, this is a material contradiction in the statement of this witness which belies the story of the prosecution that the sample of 'Charas', which was alleged recovered from the contraband, seized from the accused, is the same one since on one sample there is seal 'H' and the other sample there is seal '4', as stated by PW-12.
20. A perusal of the original record of Ex. DA, which has been referred to by PW-12 in his cross-examination and regarding which he has stated "It is correct that on Ex. DA qua ninth line from bottom vide A to A, it has been shown that the Charas packet was containing seals of digit 4", it is revealed that Ex. DA is a carbon copy of the original and it seems that the emphasis on the capital letter "H" has not come out properly on the carbon copy, therefore, the alphabet 'H' is looking like the digit "4" instead of "H". A perusal of the same exhibit reveals that on the seventh line from the bottom, "H" is visible as "H" and not as the digit "4". A further scrutiny of the record reveals that on Ex. PW-12/A i.e. the NCB form, it has been clearly mentioned against column No. 6 "Description of seal, number of seals put on the sample and remaining bulk: Three Nos. of seal "H" put on each sample, and six seal "H" put on remaining Bulk" and the same is dated 26.3.2002. In Ex. PW-12/B, which is the letter to the SHO and endorsement regarding registration of the case written by HC Lal Singh (PW-12), it is clearly mentioned that "Both the samples of Charas were sealed with three each seals bearing impression "H". The Parcel containing remaining 12 kg. 450 gms. Charas was sealed with six seals bearing impression 'H'. Specimens of seal were retained separately on a piece of cloth", are on record and have been seen by us.
21. The learned Additional Advocate General has drawn our attention to 2005 (1) Crimes 358 titled Sanjiv Kumar alias Sanju v. State of H.P. which is a judgment of this Court, in which the contention of the learned defence Counsel that the seized 'Charas' was not kept in safe custody by the Authorized Officer was not accepted and the cogent, trustworthy and convincing evidence of the official witnesses had been believed. The relevant paragraph in this regard is paragraph-22, which is reproduced under:
22. We have perused the NCB form Ext. PM on which FIR No. 101/2K has been written in blue ink whereas on other documents it is written in red ink. In our view mere use of different ink in writing the number of the FIR, does not amount to disbelieve the correctness and authenticity of the F.I.R. registered against the accused in Police Station, Aut on the basis of Ruka Ext. PG. We find no other discrepancies in conducting the investigation by PW-5 who has complied the mandatory and directory provisions of NDPS Act. Different use of ink in giving number of FIR would not prejudice the defence of the accused. There is not an iota of evidence to prove that the FIR was ante dated or it was recorded by PW-3 Naresh Kumar after due deliberation. Ruka Ext. PG recorded by PW-5 at the spot at about 8.05 a.m. was sent to the Police Station through PW-2 LHC Narpat Ram for registration of the case against the accused. The First Information Report was recorded at about 8.55 a.m. by PW-3 without delay. In the facts and circumstances of the case, this contention of the accused cannot be sustained.
In this case there was a discrepancy in the colour of the ink used in writing the documents and it was held that the use of different ink would not lead to the disbelieving the correctness and authenticity of the FIR.
22. In the case in hand also, the discrepancy in the description of seals whether 'H' or '4' (though not actually a discrepancy as discussed above) also, in our view, does not compel us to disbelieve the correctness and authenticity of the prosecution version that the samples were sealed with three seals of seal 'H' and bulk of the case property with six seals of seal 'H' and not of '4', as already explained above.
23. From the above perusal of the record, it is evidence that there was no seal of digit '4' but the same was of 'H', which is not properly visible on the carbon copy of Ex. DA and which is being read as digit '4'. In fact, all the documents on record belie the contention that the seal impression was of digit '4' and not of 'H'. There is no reason to disbelieve the documentary evidence on record and, further, it is not the case of the learned Counsel for the accused that the documents are not correct or have been falsified. This contention, therefore, does not merit acceptance.
GROUND No. II:
24. The learned Counsel for the accused has vehemently argued that on the basis of the evidence brought on record by the prosecution and the defence, the guilt of the accused cannot be proved beyond reasonable doubt and where two views are possible, the view favourable to the accused has to be preferred over the view favourable to the prosecution.
25. In support of this contention, the learned Counsel for the accused has pointed out certain contradictions. The accused was spotted coming along side of the river coming from the Tibetan Colony towards Kullu with a bag on his shoulder and he was then overpowered and on raising alarm, he sat down. Whereas, DW-1 HHG Gian Chand has not supported this version and has stated that the bag was found from the centre of the bus. Reliance has also been placed on the statement of DW-2, who also states that the bag was recovered from the middle of the bus at a distance of 2-3 seats from the seat of the accused, which is also contradictory to the statement of PW-12. The suggestions put to PWs-10, 11 and 12 in this regard have also been pointed out. In support of this contention, the learned Counsel for the accused has placed reliance upon titled Kali Ram v. State of Himachal Pradesh, para-27 of this judgment reads as follows:
27. It is no doubt true that wrongful acquittals are undesirable and shake the confidence of the people in the judicial system, much worse, however, is the wrongful conviction of an innocent person. The consequences of the conviction of an innocent person are far more serious and its reverberations cannot but be felt in a civilised society. Suppose an innocent person is convicted of the offence of murder and is hanged, nothing further can undo the mischief for the wrong resulting from the unmerited conviction is irretrievable. To take another instance, if an innocent person is sent to jail and undergoes the sentence, the scars left by the miscarriage of justice cannot be erased by any subsequent act of expiation. Not many persons undergoing the pangs of wrongful conviction are fortunate like Dreyfus to have an Emile Zola to champion their cause and succeed in getting the verdict of guilt annulled. All this highlights the importance of ensuring, as far as possible, that there should be no wrongful conviction of an innocent person. Some risk of the conviction of the innocent, of course, is always there in any system of the administration of criminal justice. Such a risk can be minimized but not ruled out altogether. It may in this connection be apposite to refer to the following observations of Sir Carleton Allen quoted on page 157 of "The Proof of Guilt" by Glanville Williams, Second Edition:
I dare say some sentimentalists would assent to the proposition that it is better that a thousand or even a million guilty persons should escape than that one innocent person should suffer; but no responsible and practical person would accept such a view. For it is obvious that if our ratio is extended indefinitely, there comes a point when the whole system of justice has broken down and society is in a state of chaos.
The fact that there has to be clear evidence of the guilt of the accused and that in the absence of that it is not possible to record a finding of his guilt was stressed by this Court in the case of Shivaji Sahebrao, Cri. Appeal No. 26 of 1970, D/- 27.8.1973=(re-ported in AIR 1973 SC 2622) (supra) as is clear from the following observations:
Certainly it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distinction between 'may be' and 'must be' is long and divides vague conjectures from sure considerations.
26. There can certainly be no doubt as to the principle of law enunciated by their Lordships of the Hon'ble Supreme Court. However, as far as the present case is concerned, the ratio enunciated therein will not be applicable because the evidence on record does not cast any doubt regarding the guilt of the accused. Rather the contentions raised under Ground No. 1 by the learned Counsel for the accused, as already discussed above, have not been substantiated by the record.
27. Further, in 2002 Supreme Court Cases (Cri) 350 titled State of Haryana v. Ram Singh, in para-19 of the said judgment relied upon by the learned Counsel for the accused, the same proposition of law as enunciated in Kali Ram's case (supra) has been applied to the peculiar facts and circumstances of that case. Stress has been laid upon the observations of the Hon'ble Supreme Court that the evidence tendered by defence witnesses cannot always be termed to be a tainted one and the defence witnesses are entitled to equal treatment and equal respect as that of the prosecution and that the credibility and trustworthiness of the defence witnesses should be treated at par with that of prosecution witnesses. The same proposition of law has been further relied upon by the learned Counsel for the accused in 2004 SCC (Cri) 295 titled Banti v. State of M.P., in para-9. It is no doubt true that the evidence of the defence witnesses cannot be ignored by the Courts. However, it cannot be disputed, as has also been observed by their Lordships of the Hon'ble Supreme Court in Para-9 of this Judgment in Banti's case (supra) "Like any other witness, his evidence has to be tested on the touchstone of reliability, credibility and trustworthiness, particularly when he attempts to resile from and speak against records and in derogation of his earlier conduct and behaviour. If after doing so, the Court finds it to be untruthful, there is no legal bar in discarding it."
28. In the present case, the record tells a different story and the defence witnesses, especially DWs-1 and 2, tell a different story. The testimony of the defence witnesses does not find corroboration either from the record or from the evidence of the other witnesses. In fact, one of the defence witnesses i.e. DW-2 has admitted that he is a class-fellow of the accused and DW-3 has stated that he is deposing in favour of the accused only because one Tola Ram has asked him to do so. Therefore, the testimony of these two defence witnesses is neither trustworthy nor credible. As far as DW-1 is concerned, his testimony does not find corroboration from any document on record. It is not the case set up by the learned Counsel for the accused that all the documents on record have been fabricated and are falsified. There is no reason to disbelieve the evidence brought on record by the prosecution. The contention of the learned Counsel for the accused that there are two views possible in this case and the view favourable to the accused has to be preferred, cannot be accepted since, in our considered opinion, the evidence and the record overwhelmingly points to only one view and that is that the accused and no other person has committed the offence he has been charged and sentenced for, beyond any shadow of doubt.
29. As a result of the above discussion, we are of the considered opinion that there is no justifiable reason or ground to interference with the judgment of the learned Sessions Judge.
30. There is no merit in the appeal, which is accordingly dismissed.