Himachal Pradesh High Court
State Of Himachal Pradesh vs Surjeet Kumar on 29 June, 2016
Bench: Rajiv Sharma, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Appeal No. 125/2009
Reserved on: June 22, 2016
Decided on: June 23, 2016
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State of Himachal Pradesh ...... Appellant
Versus
Surjeet Kumar ........Respondent
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Coram:
Hon'ble Mr. Justice Rajiv Sharma, Judge
Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge
of
Whether approved for reporting? 1 yes.
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For the appellant : Mr. P.M. Negi, Deputy Advocate
General.
For the respondent
rt : Mr. Tara Singh Chauhan, Advocate.
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Per Rajiv Sharma, Judge:
The State has come in appeal against Judgment dated 18.9.2008 rendered by the learned Special Judge-II, Solan, District Solan, Himachal Pradesh in Sessions Trial No. 11-S/7 of 2008, whereby respondent-accused (hereinafter referred to as 'accused' for convenience sake), who was charged with and tried for offence under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as 'Act' for convenience sake), has been acquitted by the learned trial Court.
2. Prosecution case, in a nutshell, is that on 12.4.2008, police personnel were on patrol duty from Police Station, Darlaghat and were proceeding towards Kararaghat. At about 6.30 PM, when they were near hotel known as Sapna Hotel, accused was found carrying a bag on his left shoulder. On seeing the police, the accused tried to flee away. He was overpowered. The bag contained a 1 Whether the reporters of the local papers may be allowed to see the judgment? ::: Downloaded on - 15/04/2017 20:43:27 :::HCHP 2 bundle wrapped in green coloured Dupatta. It contained Charas in the shape of sticks. It weighed 810 grams. Police took samples of 10 grams each out of the Charas. Sample and the bulk were packed .
and sealed separately. NCB form was filled in. Rukka was sent to the Police Station. Contraband was sent to FSL Junga. Investigation was completed. Challan was put in the Court after completing all the codal formalities.
3. Prosecution has examined as many as ten witnesses to of prove its case against the accused. Accused was also examined under Section 313 CrPC. He pleaded innocence. Accused was rt acquitted as noticed above. Hence, this appeal by the State.
4. Mr. P.M. Negi, Deputy Advocate General has vehemently argued that the prosecution has proved its case against the accused.
5. Mr. Tara Singh Chauhan, Advocate, has supported Judgment dated 18.9.2008.
6. We have heard the learned counsel for the parties and also gone through the Judgment and record carefully.
7. Constable Yash Pal (PW-1) testified that he alongwith Constable Vishal, MHC Bali Ram and HC Rishi Ram, was on patrolling duty on 12.4.2008. When they were proceeding towards Kararaghat and approached Harish Sapna Hotel, accused was found carrying a black coloured bag on his left shoulder. He tried to run away. He was overpowered. There was no person available nearby hence the bag was placed on the road side and checked in the presence of accused. It contained Charas. It weighed 810 grams. ::: Downloaded on - 15/04/2017 20:43:27 :::HCHP 3 Two samples of 10 grams each were taken out and put in two empty match boxes. Match boxes were placed in cloth parcel and were sealed with seal impression 'H' at three places. Remaining Charas .
was also packed and sealed with seal 'H' at three places. Seal was handed over to HHC Bali Ram, after use. Seizure memo Ext. PW- 1/A was prepared. In his cross-examination, he admitted that the Police Station, Darlaghat was situate on roadside. Place was busy.
8. Bali Ram (PW-2) and Vishal Verma (PW-3) have also of corroborated the statement of PW-1 Shri Yash Pal, about the manner in which accused was apprehended, Charas was seized rt from the bag carried by the accused on 12.4.2008. Vishal (PW-3) has taken Rukka Ext. PW-3/A.
9. HHC Ram Lal (PW-4) testified that on 16.4.2008, MHC Ram Pal handed over to him one parcel, sealed with seal 'S' at three places, two samples of seal 'S' and 'H', NCB form and relevant papers vide RC No. 3/08. He deposited the same at FSL Junga on the same day and receipt thereof was handed over to the MHC.
10. HC Ram Pal (PW-7) testified that on 12.4.2008, at 9.20 PM, SI Amar Chand deposited with him one parcel re-sealed with four seals of 'S', which was bearing Mark P, two samples bearing marks P1 and P2 and sealed with seal 'S', one black bag, NCB form in triplicate, samples of seals 'H' and 'S', which were recorded in the Malkhana Register. Contraband was sent for chemical analysis at FSL Junga through Constable Ram Lal. Receipt was handed over by him after depositing the contraband.
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11. HC Rishi Ram (PW-8) also testified the manner in which accused was apprehended, all the codal formalities were completed on the spot including filling up of NCB form, preparation .
of Rukka etc. He recorded the statements of witnesses. Case property was produced by him before the learned Judicial Magistrate 1st Class, Arki on 16.4.2008. Magistrate issued certificate Ext. PW-8/E. Case property was handed over to the MHC thereafter.
of
12. SI Amar Chand (PW-10) deposed that the case property was produced before him by HC Rishi Ram. Parcels were resealed rt with 'S'. Impressions of seals were taken separately vide Ext. PW- 10/B. He filled in columns No. 9 to 11 of the NCB form.
13. What emerges from the statements, as noticed above, is that the accused was apprehended on 12.4.2008 carrying a bag on his left shoulder. Bag was searched. It contained Charas. It was sent to FSL Junga and found to be Charas. Accused was apprehended at 6.30 PM on 12.4.2008. Place, where accused was apprehended, was an isolated and deserted place. There was no possibility of independent witnesses being available at the spot. Merely that Yash Pal (PW-1) in his statement has stated that the place was busy, would not infer that independent witnesses were readily available on the spot. Learned trial Court has erred in law by coming to a wrong conclusion that the police should have associated somebody from Harish Sapna Hotel. Case property was duly sealed and was produced before SI Amar Chand (PW-10). Seals were found intact when the samples have reached their destination i.e. FSL Junga as ::: Downloaded on - 15/04/2017 20:43:27 :::HCHP 5 per Ext. A1. Samples were carried to FSL Junga by Constable HHC Ram Lal. These were duly received on 16.4.2008. One sealed cloth parcel Ext. A-1 bearing three seals of 'H' and resealed with three .
seals of 'S' was deposited by Ram Lal with FSL Junga. Statements of official witnesses inspire confidence and are to be treated at par with other witnesses.
14. Their lordships of the Hon'ble Supreme Court in the case of Karamjit Singh vs. State (Delhi Administration), reported of in AIR 2003 SC 1311, have held that there is no principle of law that without corroboration by independent witnesses their testimony rt 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 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 ::: Downloaded on - 15/04/2017 20:43:27 :::HCHP 6 incident took place in November 1990, when terrorism was at its peak in Punjab 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 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 of 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 rt personnel, should not be relied upon has hardly any substance and cannot be accepted."
15. Prosecution has duly explained that the samples, from the date of seizure till production before FSL, Junga, were in safe custody. They were never tampered with. Contraband was duly deposited in the Malkhana and thereafter it was sent to FSL Junga. The learned trial Court has come to a wrong conclusion that the prosecution has not explained that where the case property remained from 12.4.2008 to 16.4.2008. Case property was sent to FSL Junga. In column No. 12 also, date of seizure is shown as 12.4.2008 and same was dispatched to FSL Junga on 16.4.2008. Ext. PW-8/E also lends credence to the prosecution case, vide which case property was produced before Judicial Magistrate 1st Class.
16. Prosecution has proved beyond reasonable doubt that the contraband was recovered from the conscious and exclusive possession of the accused.
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17. Accordingly, the appeal is allowed. Judgment dated 18.9.2008 rendered by the learned Special Judge-II, Solan, District Solan, Himachal Pradesh in Sessions Trial No. 11-S/7 of 2008 is set .
aside. The accused is convicted for offence punishable under Section 20 of the Act. Accused be produced to be heard on quantum of sentence on 29.6.2016.
18. Registry is directed to prepare and send the production warrant to the quarter concerned.
of
(Rajiv Sharma)
rt Judge
(Chander Bhusan Barowalia)
Judge
June 23, 2016
(vikrant)
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