Himachal Pradesh High Court
Irshan Mohammad Alias Alladeen vs State Of Himachal Pradesh on 9 October, 2023
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. A. No. 285 of 2018 Reserved on: 06.10.2023 Date of decision: 09.10.2023 .
Irshan Mohammad alias Alladeen ...Appellant Versus State of Himachal Pradesh ...Respondent of Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Ranjan Sharma, Judge.
rt Whether approved for reporting? No. For the Appellant : Mr. K. B. Khajuria, Advocate.
For the Respondent: Mr. I. N. Mehta, Mr. Y. W. Chauhan, Sr. Addl. A.Gs. with Ms. Sharmila Patial, Addl. A.G. and Mr. J. S. Guleria, Dy. A.G. Tarlok Singh Chauhan, Judge.
The appellant has been convicted and sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 1,00,000/-, and in default of payment of fine, to further undergo simple imprisonment for two years for the commission of an offence punishable under Section 20(b)
(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'ND&PS Act').
2. The case of the prosecution in brief is that a police party consisting of Inspector/Station House Officer Jagdish Chand, (PW11), HC Vicky Raj, C. Sanjay Kumar (PW1) and C. Hoshiar Singh (PW2) were present at Chakoli around 1:35 a.m. ::: Downloaded on - 09/10/2023 20:36:16 :::CIS 2 on 9.11.2016 in connection with nakkabandi, in official vehicle being driven by HHC Des Raj. The appellant was noticed coming from the side of Diur towards Chakoli Chowk and he .
was carrying a bag (Ex.P6) in his right hand. On seeing the police party, he got perplexed and tried to flee away, which raised a suspicion and, therefore, he was apprehended.
3. On inquiry, he divulged his antecedents. It being of odd hours of the night and a desolate place, no independent witness was available there, therefore, Inspector Jagdish rt Chand associated HC Vicky Raj and C. Sanjay Kumar as witnesses and in their presence the orange coloured carry bag (Ex.P.6) was checked, in which another bag of light orange colour (Ex.P7) was found, in which charas Ex.P8 was contained. On weighing the same, it was weighed and found to be 1.780 Kgs.
4. The recovered charas was put back in the same manner and then packed in a cloth parcel (Ex.P.4), which was sealed with eight seals of impression 'A'. Thereafter, Inspector Jagdish Chand filled in form NCB-1 (Ex.P5) in triplicate and also retained specimen of seal impressions on a piece of cloth (Ex.PW.1/B). Seal impressions were also put on the form NCB-1 and the seal 'A' after use was handed over to HC Vicky Raj.
The parcel containing charas was taken into possession through seizure memo Ex.PW.1/C. The proceedings were also photographed by C. Hoshiar Singh (PW2) and HC Avinder ::: Downloaded on - 09/10/2023 20:36:16 :::CIS 3 Singh (PW13) and got developed photographs Ex.P.1 to Ex.P.3.
rukka (Ex.PW.1/D) was prepared by Inspector Jagdish Chand and handed over to C. Sanjay Kumar, who took the same to .
Police Station, Kihar, on the basis of which FIR EX.PW.1/E was registered by ASI/Officiating Station House Officer Surinder Kumar (PW6). A carbon copy of rukka (Ex.PW.5/A) was also sent to Sub Divisional Police Officer (for short 'SDPO'), Salooni, of for information through C. Hoshiar Singh.
5. The further investigation in the case was rt conducted by HC Avinder Singh (PW13), on the request of Inspector Jagdish Chand, who handed over the sealed parcel containing 1.780 Kgs. charas, sample seal, form NCB-I in triplicate, seizure memo and identification memo along with the case file vide inventory was handed over to HC Avinder Singh (PW13). On the demarcation of Inspector Jagdish Chand, HC Avinder Singh had prepared the site plan (Ex.PW.13/A). He recorded the statements of witnesses as per their versions.
6. The accused was arrested vide memo Ex.PW.13/B and his personal search was also conducted and memo Ex.PW.13/C was prepared in this regard. The investigating officer, HC Avinder Singh, had also sent special report Ex.PW.5/B to the SDPO, Salooni, through C. Hoshiar Singh. The case property was produced by HC Avinder Singh before ASI/Officiating Station House Officer, Surinder Kumar, who after verifying the same, resealed the parcel with three seals ::: Downloaded on - 09/10/2023 20:36:16 :::CIS 4 of impression 'N'. Reseal memo Ex.PW6/A was prepared. He filled in the relevant columns of the form NCB-I in triplicate and had also sealed with seal impressions 'N' on them. The .
case property was deposited with MHC Prabhat Nahar (PW12), who made an entry in the Malkhana register at Serial No.213/16, copy of which is Ex.PW.12/A.
7. On the same day i.e. 9.11.2016, the sealed parcel of containing charas was sent through HC Avinder Singh for certifying the inventory and for obtaining a certificate from the rt Court of learned Judicial Magistrate Ist Class, Chamba and the parcel was again deposited with the MHC. On 10.11.2016, MHC Prabhat Nahar (PW12) had sent the bulk parcel containing charas alongwith form NCB-1 in triplicate, sample seals and docket vide C. No.166/16, copy of which is Ex.PW.12/C to State FSL, Junga through C. Sanjay Kumar (PW1) for analysis, who after depositing the same had handed over the receipt to the MHC. On 5.12.2016, the case property and State FSL report Ex.PX were brought back by C. Vipin (PW7) and deposited with the MHC. The Chemical Examiner found that the exhibit was extract of cannabis and sample of charas.
8. It is also there in the charge sheet that on 22.12.2016 ASI Ajeet Singh (PW10) had produced the case property before the learned Judicial Magistrate Ist Class, Chamba, vide application Ex.PW.10/B, for pre-trial disposal samples. After drawing two samples of 25 grams each, the ::: Downloaded on - 09/10/2023 20:36:16 :::CIS 5 learned Judicial Magistrate Ist Class, Chamba sealed both the samples as well as the bulk parcel with seal "JM CHAMBA" at five places each and issued certificate EX.PW.10/A. Thereafter, .
ASI Ajeet Singh deposited the sample parcels along with the bulk parcel with the MHC at Police Station, Kihar. During investigation, the investigating officer also obtained copies of the G.D. entries, the extract of Malkhana register and copies of of R.Cs.
9. Finding a prima facie case, charge under section rt 20 (ii)(C) of the Act was framed and put to the appellant to which he pleaded not guilty and claimed to be tried.
10. After the closure of prosecution evidence, the appellant was examined under Section 313 Cr.P.C., whereby he denied the prosecution case and raised the plea of false implication and examined DW1 Mousama Begum in his defence.
11. The learned Special Judge after evaluating the evidence, convicted the appellant as aforesaid and aggrieved thereby the appellant has filed the instant appeal.
12. Shri Kulbhushan Khajuria, the learned Advocate for the appellant, has raised the following contradictions:
(I) Non-association of independent witnesses
(ii) Contradiction regarding time of laying nakka
(iii) Discrepancy regarding weight of the contraband ::: Downloaded on - 09/10/2023 20:36:16 :::CIS 6
(iv) Discrepancy in the spot map
(v) Contradiction regarding the time of resealing of the contraband .
13. On the other hand, Shri J. S. Guleria, learned Deputy Advocate General, would argue that the judgment passed by the learned Special Judge is a well considered one of where both the legal as well as factual aspects, more particularly, the evidence has been taken consideration and such findings warrant no interference.
rt We have heard the learned counsel for the appellant and the learned Deputy Advocate General for the State and have gone through the record of the case.
14. Before giving pointwise findings, it shall be relevant to first take note of the evidence that has come on record.
15. PW11 Inspector Jagdish Chand, who was alleged to have apprehended the appellant with the contraband, in his deposition, stated that on 08.11.2016, he was heading a police party consisting of HC Vicky Raj, C. Sanjay Kumar and C. Hoshiar Singh. At about 8:45 p.m., they had left the police station to lay a routine nakka in official vehicle No. HP 48- 0863, being driven by HHC Des Raj. He had carried I.O. kit, torch, camera and an electronic scale. At about 1:35 a.m, ::: Downloaded on - 09/10/2023 20:36:16 :::CIS 7 when they had laid a nakka at Chakoli bridge, the appellant was seen coming from the side of Diur. With the help of torch, he was found to be carrying a carry bag in his right hand. On .
seeing the light, the appellant turned back and tried to flee away. However, he was apprehended by the police party at a distance of about 5-7 metres. He was brought near the parked official vehicle and on inquiry divulged his name as Irshad of Mohammad alias Alladeen. The orange coloured carry bag having two strings with the words `Rbk` inscribed on it, was rt checked. Inside the carry bag, another carry bag, which was in light orange colour, with one of its strings was broken containing a black coloured substance in the shape of bundles of sticks which was identified to be charas by smell and experience was found. Since, it was a lonely place, no independent witness was available. He then associated HC Vicky Raj and C. Sanjay Kumar as witnesses. Memo of identification Ex.PW.1/A was prepared. The recovered charas and on being weighed was found to be 1.780 kgs. The carry bags along with charas were then packed in a cloth parcel with 8 seal impressions of seal 'A'. Form NCB-I was filled in triplicate. Seal 'A' was impressed upon it. Sample of the seal was taken on a piece of plain cloth EX.PW.1/B and the seal after use was handed over to HC Vicky Raj. The sealed parcel containing charas, form NCB-I in triplicate and sample seal were seized vide seizure memo Ex.PW1/C. It was signed by ::: Downloaded on - 09/10/2023 20:36:16 :::CIS 8 the marginal witnesses as well as the appellant. Its carbon copy was given free of costs to the appellant. Thereafter, rukka Ex.PW.1/D was drawn and it was handed over C. Sanjay .
Kumar to carry it to Police Station, Kihar. Its carbon copy was handed over to C. Hoshiar Singh to be handed over to SDPO, Salooni.
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16. Thereafter, PW11 made a phone call at the Police Station, Kiar to send second investigating officer. It was then that HC Avinder Singh was deputed to the spot along with HC rt Devi Singh. They reached the spot after half an hour.
Inventory Ex.PW.11/A was prepared by him and on its basis, he handed over the sealed parcel containing charas, seizure memo, identification memo, form NCB-I in triplicate, sample seal and the appellant along with the file to HC Avinder Singh.
On his demarcation, site plan was then prepared by HC Avinder Singh. He then left the spot in the vehicle along with the driver for further patrolling towards Diur and the further investigation was carried out by HC Avinder Singh.
Photographs Ex.P.1 to Ex.P.3 were clicked on the spot by C. Hoshiar Singh with the official camera. The witnesses identified the parcel Ex.P.4 to be the same, which was prepared at the spot. He also identified the carry bags Ex.P.6 and Ex.P.7 and charas Ex.P.8 to be the same, which had been recovered from the appellant.
::: Downloaded on - 09/10/2023 20:36:16 :::CIS 917. In his cross-examination, he stated that on that day the police party had left the Police Station to lay a nakka.
On returning from Chakoli, they were to stop in between.
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However, no specific place was chosen for the said purpose and no other case was there for investigation that night. The log book of the official vehicle had been filled in. In between the spot and the police station, no other nakka had been laid.
of They reached Chakoli at 12:05-12:10 AM. They have not laid barricade on the road. He admitted that from Chakoli bridge, rt there were three roads; one going to Kihar, the second to Diur/Himgiri etc. and the third to Salooni. He further deposed that after nabbing the appellant, the proceedings had been carried out with the help of light of the vehicle and the torch.
No personal search of the appellant had been taken. He admitted that there is a village by the name of Chakoli, however, the same was at a far of distance. He categorically denied that village Chakoli was at a distance of 50 metres from the spot. He feigned ignorance that there were 5-6 houses in village Chakoli. He denied that at a distance of 200 metres from Chakoli bridge towards Salooni, there is another village by the name Pall. He volunteered to state that there is a village by the name of Chandroon. He specifically denied that at a distance of 20 metres from Chakoli bridge, there is a house of Mousama, a former BDC member. He also denied that on Kihar road from Chakoli bridge, there are houses of ::: Downloaded on - 09/10/2023 20:36:16 :::CIS 10 Bensu and his son Ramesh located at a distance of 20 meters.
He categorical denied that near Chakoli bridge, there is a tea shop of one Harminder. He volunteered to state that it was .
closed at that time. He further stated that he had not deputed any police official to search for an independent witness. It takes one and half hours to complete the entire proceedings at the spot. Rukka and seizure memo were in the hand of HC of Vicky Raj. Volunteered to state that, their contents were dictated by him. He further stated that identification memo rt was scribed by C. Sanjay Kumar, while the inventory was scribed HC Vicky Raj. He further admitted that no document was scribed by him and stated that all the documents had been prepared on his dictation and under his supervision. He further stated that he was not aware as to whether the official vehicle remained stationary at that very place till the arrival of HC Avinder Singh on the spot. He stated that he had disclosed to HC Avinder Singh that the official vehicle had been parked at Chakoli bridge towards Kihar side. He had filled in column Nos. 1 to 8 of form NCB-I in triplicate and none of the aforesaid columns had been left blank. He admitted that in column No.3 of the form NCB-1, the time of seizure had been mentioned as 2:15 a.m. He specifically denied that neither any nakka had been laid nor the appellant had been apprehended and the contraband recovered from him. He also denied that no proceedings had been carried out on the spot ::: Downloaded on - 09/10/2023 20:36:16 :::CIS 11 and all the documents had been prepared at the police station.
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18. C. Sanjay Kumar (PW1) has deposed exactly on the line of PW11 Inspector Jagdish Chand about the manner in which the appellant was apprehended, charas recovered or the contraband was packed and sealed. In addition to this, he of also testified about the rukka that was prepared and sent to the police station and carbon copy given to C. Hoshiar Singh for being handed over to SDPO Salooni. He further deposed rt that he had taken the case property on 10.11.2016 alongwith the docket and other relevant documents to State FSL, Junga for analysis where he deposited the same safely on the next day i.e. 11.11.2016. He on his return, he handed over the receipt to the MHC.
19. On being cross-examined, this witness stated that the police party had reached Chakoli at about 12:05 a.m. and no vehicle had been checked in between 12:05 a.m. to 1:35 a.m. He was not aware that at a distance of 20 meters there was Chakoli village where five to six families resided. He also feigned ignorance that at a distance of 20 meters from the bridge towards Salooni, there was house of Mousama, a former BDC member and there were also other houses of Bensu Ram and his son Ramesh. He volunteered to state that there was a shop belonging to Harminder. He further deposed ::: Downloaded on - 09/10/2023 20:36:16 :::CIS 12 that the appellant had been nabbed by all the police officials.
He further stated that at that time, they were not aware that the appellant was in possession of contraband. He further .
stated that no one had been sent in search of independent witnesses by PW11 Jagdish Chand. He like PW11 further stated that after the appellant was nabbed he had been brought to the place where the vehicle was parked and further of proceedings had been conducted with the help of the torch and the light of the vehicle. He further deposed that he had rt left the spot on foot at about 3:00 a.m. to the police station and returned back at about 4:45 a.m.
20. To the similar effect is the statement of C. Hoshiar Singh (PW2), who was present at the spot and he admitted that he carried the carbon copy of the rukka to the SDPO, Dalhousie, as he was holding the additional charge of SDPO Salooni, as there was no SDPO posted at Salooni. He had handed over special report to the Reader of the SDPO.
21. HC Avinder Singh (PW13), carried out the further investigation in the case also supported the statements of the aforesaid witnesses, besides stating about the remaining proceedings that were conducted by him at the spot, like preparation of the site plan, arrest of the appellant, recording the statements of the witnesses and production of parcels containing charas before ASI Surinder Kumar, the officiating ::: Downloaded on - 09/10/2023 20:36:16 :::CIS 13 Station House Officer for the purpose of re-sealing. He had also obtained a certificate of correctness of the inventory under Section 52A of the ND&PS Act from the learned Judicial .
Magistrate First Class, Chamba and had also sent the special report.
Point No. i of Non-association of independent witnesses
22. Adverting to the submissions of the learned counsel for the appellant that the prosecution case must fail rt for want of non-association of independent witness.
23. Suffice it to say, that there is no gainsaying that lack of independent witnesses are not fatal to the prosecution case, however, such submissions cast an added duty on the Court to adopt a greater degree of care while scrutinizing the testimonies of the police officers, which are found reliable can form the basis of a successful conviction as held by three-
Judge Bench of the Hon'ble Supreme Court in Raveen Kumar vs. State of H.P. AIR 2020 SCC 5375. Moreover, it is a settled law that for non-association of independent witnesses, the statements of official witnesses cannot be disbelieved unless the appellant proves that the prosecution witnesses are biased or that failure of justice was caused to him.
::: Downloaded on - 09/10/2023 20:36:16 :::CIS 1424. Adverting to the facts of the present case, the police party was present at Chakoli bridge at about 1:30 a.m. where they had laid a nakka. It is then that the appellant .
came from the side of Diur towards police party and on seeing them, he turned back and tried to flee, evoking suspicion and was then apprehended at the dead of the night, that too, in the month of November.
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25. It has come in the statement of Inspector Jagdish Chand PW11 that when the appellant was apprehended rt neither any public witness was available nor any vehicle had passed by from the spot.
26. Moreover, it was not a case of prior information but a case of chance recovery. Thus, ameliorating the requirement of complying with Section 42 of the ND&PS Act as held by the Hon'ble Constitutional Bench of the Hon'ble Supreme Court in State of Punjab vs. Baldev Singh 1999 (6) SCC 172 and also in Ram Kumar vs. Central Bureau of Narcotics, 2008 (5) SCC 385.
Point No. ii Contradiction regarding time of laying nakka
27. As regards the contention that there was contradiction in the of the witnesses regarding the time at which the nakka was laid, we find no merit in this contention.
::: Downloaded on - 09/10/2023 20:36:16 :::CIS 15What is material is the time when the appellant was nabbed or apprehended with the contraband. PW1 C. Sanjay Kumar, PW2 C. Hoshiar Singh and PW11 Inspector Jagdish Chand have in .
one voice stated that it was at 1:35 a.m. that the appellant was apprehended with the contraband.
Point No. iii of Discrepancy regarding weight of the contraband
28. Adverting to the contention of the weight of rt contraband, it needs to be noticed that in the instant case, the contraband as recovered was found to be 1.780 Kgs. and when the same was produced before the learned Judicial Magistrate First Class, Chamba, for certification under Section 52 A, it was found to be 1.654 Kgs and when the bulk was sent for analysis to SFSL, the weight was found to be 1.764 Kgs. It would be noticed that there is no significant or substantial difference in the weight and moreover, the seal in the instant case have been found to be intact all throughout.
Point No. iv Discrepancy in the spot map
29. The contention of learned counsel for the appellant that the site map has not been drawn correctly as PW13 has not shown the place where the official vehicle had been parked and has further not shown the shop of Harminder ::: Downloaded on - 09/10/2023 20:36:16 :::CIS 16 Singh, which is at a distance of 20-25 meters from the Chakoli Bridge and the same is fatal to the prosecution case.
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30. In support of this contention, learned counsel for the appellant has relied upon the judgment of the Hon'ble Supreme Court in Criminal Appeal No. 2035 of 2022, titled as Amar Chand vs. State of Himachal Pradesh, decided of on 22.11.2022, more particularly, the following observations:-
rt "It has come on record that the site plan/spot map, marked Ex. PW-5/D, which was statedly prepared at the spot where recovery was made on 03.05.2015, is wrong and incorrect. Head Constable Hitesh Kumar (PW-4), in his cross- examination, has accepted that in the site plan, the river has been shown on the left-side going towards Manikaran. However, this is incorrect as the river should have been shown on the right-side and the hill-side should have been shown on the left-side. This would indicate that the location of the police vehicle used for Nakabandi has been wrongly indicated. Similarly, the place where the appellant had allegedly thrown the rucksack (Pithu bag) has been wrongly stated.
Head Constable Sunil Kumar (PW-5), the Investigating officer, has deposed in his examination-in-chief as having prepared the spot/site plan, marked as Ex. PW- 5/D. In his cross examination, he had to accept that the site plan is incorrect as the river is shown on the right- side while going from Bhuntar towards Manikaran. He has stated that this was a mistake, albiet a miss so fundamental which does dent and cast grave doubt on ::: Downloaded on - 09/10/2023 20:36:16 :::CIS 17 the prosecution version on the place and manner of recovery."
31. As regards the contention that there is .
discrepancy in the spot map, we really find no such discrepancy as is otherwise contended by the learned counsel for the appellant. The spot map Ext. PW13/A was prepared by PW13 HC Avinder Singh, who in his cross-examination, had of admitted that he has not shown the shop of Harminder Singh in the site plan Ext. PW13, which is located at a distance of rt 20-25 meters from Chakoli bridge, but that by itself cannot be fatal to the case of the prosecution and there is nothing on record to suggest that the prosecution witnesses are biased or vindictive or had any score to settle with the appellant. Even the judgment relied upon by the appellant is of no avail because all necessary details with regard to the point of recovery have been sufficiently and correctly marked.
32. Given the fact that it was a chance recovery, the non-mentioning of the shop or the spot where the vehicle had been parked does not create any doubt much less a dent on the prosecution version regarding the place and manner of recovery.
Point No. v Contradiction regarding the time of resealing of the contraband ::: Downloaded on - 09/10/2023 20:36:16 :::CIS 18
33. It is next contended by learned counsel for the appellant that there is major discrepancy with regard to timing .
of resealing of the contraband.
34. We may at the outset observe that HC Surinder Kumar, who resealed the contraband was deposing in this of case after nearly one year and there bound to be some discrepancy in his deposition, but then unless the contradiction is of a material dimension, the same cannot be rt used to jettison the evidence in its entirety, after all the discrepancy has to be distinguished from contradictions, while minor discrepancies or variance in evidence will not make the prosecution case doubtful.
35. The above principle of law has been laid down in State of H.P. vs. Lekh Raj 2000(1) SCC 247, relevant portion whereof reads as under:-
In support of the impugned judgment the learned counsel appearing for the respondents vainly attempted to point out some discrepancies in the statement of the prosecutrix and other witnesses for discrediting the prosecution version. Discrepancy has to be distinguished from contradiction. Whereas contradiction in the statement of the witness is fatal for the case, minor discrepancy or variance in evidence will not make the prosecution's case doubtful. The normal course of the human conduct would be that while narrating a ::: Downloaded on - 09/10/2023 20:36:16 :::CIS 19 particular incidence there may occur minor discrepancies, such discrepancies in law may render credential to the depositions. Parrot like statements are disfavoured by the courts. In order to ascertain as to .
whether the discrepancy pointed out was minor or not or the same amounted to contradiction, regard is required to be had to the circumstances of the case by keeping in view the social status of the witnesses and environment in which such witness was making the statement. This Court in Ousu Varghese v. State of of Kerala, [1974] 3 SCC 767, held that minor variations in the accounts of the witnesses are often the hallmark of the truth of their testimony. In Jagdish v. State of rt Madhya Pradesh, [1981] SCC (Crl.) 676, this Court held that when the discrepancies were comparatively of a minor character and did not go to the root of the prosecution story, they need not be given undue importance. Mere congruity or consistency is not the sole test of truth in the depositions. This Court again in State of Rajasthan v, Kalki & Anr., [1981] 2 SCC 752 held that in the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person.
36. Whether the discrepancy is minor or the same is fatal for the case is a matter of fact, which is special to each case.
37. Adverting to the facts, it would be noticed that there is no dispute that the contraband was sealed with seal ::: Downloaded on - 09/10/2023 20:36:16 :::CIS 20 impression 'A' on the spot by the police party consisting of PW1 C. Sanjay Kumar, PW2 C. Hoshiar Singh and PW11 Inspector Jagdish Chand.
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38. Now the discrepancy sought to be pointed out is with respect to resealing. According to ASI Surinder Kumar, the I.O., he had received the case property from HC Avinder of Singh at 7:15 a.m. duly sealed with eight seal impression of seal 'A' alongwith NCB form in triplicate. He had thereafter re-
sealed the parcel with three seals of seal impression 'N' and rt made the relevant entries in the NCB form. Impression of seal 'N' was impressed on the NCB forms. Thereafter, specimen of seal 'N' was taken on a plane cloth and re-seal memo Ext. 6/A was prepared by him in the presence of C. Sohan Lal and HC Parbhat Nahar. It is thereafter he handed over the sealed parcel alongwith seals 'A' and 'N' and NCB form in triplicate to MHC for its safe deposit in the Malkhana. Seal impression 'N' was taken on the reverse of seal impression 'A'.
39. While being cross-examined, this witness did state that he deposited the case property with MHC at 8:35 p.m. when it was handed over to him and further admitted that in column No. 10 of NCB form Ext.P5, the time had been mentioned as 8:35 a.m. Volunteered to state that it was a clerical mistake as the case property had been deposited by him with MHC by 8:35 p.m.. He also admitted that in report ::: Downloaded on - 09/10/2023 20:36:16 :::CIS 21 No. 13 dated 09.11.2016 Ext.PW4/C, the time had been mentioned as 8:35 a.m. and again volunteered to state that it was handed over in the evening. Much capital cannot be .
permitted to be made because on the basis of the testimony of this witness, who was deposing after nearly one and half years of the incident. Moreover, the oral testimony would have to give way to what is stated in the documents wherein the of time of depositing column No. 10 of the NCB form Ext.P5. The time mentioned is 8:35 p.m. and likewise in report No. 13, rt dated 09.11.2016 Ext.PW4/C the time again mentioned is 8:35 a.m. and the time so mentioned otherwise is in consonance with the prosecution case as stated by the other prosecution witnesses, more particularly, PW12 HC Parbhat Nahar, who at the relevant time was posted as MHC PS Kiar. He categorically stated as under:-
"On 09.11.2016 at about 8:35 a.m. a sealed parcel, stated to be containing 1.780 kgs chars duly sealed with eight seal impression of seal 'A' and three seal impressions of seal 'N' alongwith sample seals 'A' and 'N', seizure memo and NCB form in triplicate had been deposited with me by ASI Surinder Singh. Reseal memo Ext. PW6/A bear my signature as a receiver of the case property in red circle 'A'. I had entered the case property in Malkhana Register at serial No. 213 of 2016 and thereafter had safely deposited it in the Malkhana.::: Downloaded on - 09/10/2023 20:36:16 :::CIS 22
40. It needs to be noticed that this witness was not even cross-examined on this aspect of the matter.
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41. In view of the aforesaid discussion, we find no merit in this appeal and the same is accordingly dismissed, so also pending applications, if any.
of
(Tarlok Singh Chauhan)
Judge
rt (Ranjan Sharma)
09.10.2023 Judge
(sanjeev)
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