Himachal Pradesh High Court
Rameshwar Sharma vs Rameshwar Sharma on 5 September, 2022
Bench: Sabina, Sushil Kukreja
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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 5th DAY OF SEPTEMBER, 2022
BEFORE
.
HON'BLE MS. JUSTICE SABINA
&
HON'BLE MR. JUSTICE SUSHIL KUKREJA
CRIMINAL APPEAL No.53 of 2017
Between:-
RAMESHWAR SHARMA,
SON OF SHRI LAXMI NAND SHARMA,
RESIDENT OF VILLAGE LAKHOTI,
TEHSIL JUNGA, DISTRICT SHIMLA,
HIMACHAL PRADESH. ......APPELLANT
(BY MR. VIVEK SHARMA, ADVOCATE)
AND
STATE OF HIMACHAL PRADESH ......RESPONDENT
(BY MR. VIKRANT CHANDEL, DEPUTY
ADVOCATE GENERAL)
RESERVED ON : 30.08.2022
ANNOUNCED ON : 05.09.2022
___________________________________________________
This appeal coming on for hearing this day, Hon'ble
Ms. Justice Sabina, delivered the following:
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JUDGMENT
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Appellant has filed the appeal, challenging judgment/order dated 24.11.2016/3.12.2016, passed by learned Special Judge(II), Shimla, Himachal Pradesh, in Sessions Trial No.21-s/7 of 2016, titled as State of Himachal Pradesh vs. Rameshwar Sharma, whereby appellant was convicted and sentenced as under:-
1. 20 of NDPS Rigorous Act r and pay imprisonment In default of payment of fine, for a term of ten years to fine further undergo of imprisonment for a period of simple Rs.1,00,000/- one year.
2. Facts of the present case, in brief, are that on 31.1.2016, Police party headed by ASI Het Ram alongwith other Police officials were present near Uttam Gas Service at NH-22. At about 9:30 p.m, the Police party noticed a person coming from Vijaynagar side. On noticing Police party, the said person turned back and tried to run away. The said person was carrying a black coloured rucksack on his shoulders. Police officials apprehended the said person and on inquiry he disclosed his name as Rameshwar Sharma. Police party suspected that the accused was in possession of some stolen articles. Since it was night time and no independent person was available at the spot, the bag carried by the accused was checked ::: Downloaded on - 05/09/2022 20:03:17 :::CIS 3 by the Police officials. On checking the bag, it transpired that it contained a red coloured carry bag and inside the said bag, there was a transparent poly packet. On opening the packet, it was found .
that it contained black coloured substance in the shape of balls and sticks. The Police officials, after smelling, discovered that the recovered substance was Charas. On weighment, the contraband came to be 2.200 Kg. The recovered substance was placed in the same poly packet and the poly packet was placed inside the red r to coloured carry bag and the carry bag was put inside the black coloured rucksack. The said bag was further made into a cloth sealed parcel with seal bearing impression 'R'. Specimen seal impression was prepared by the Investigating Officer. NCB form was filled up in triplicate. Seal impression was also affixed on the NCB form. The contraband was taken into possession. Rukka was sent for registration of the case and on the basis of the same, formal FIR No.1 dated 31.1.2016 was registered at Women Police Station, Shimla, District Shimla. Memo of arrest was prepared. Site plan was also prepared by the Investigating Officer.
3. After completion of proceedings at the spot, accused alongwith case property was produced before the Station House Officer. PW-8 Sub Inspector Reena, after checking the case property, re-sealed the same with seal impression bearing 'M'. The recovered contraband was sent to Forensic Science Laboratory for ::: Downloaded on - 05/09/2022 20:03:17 :::CIS 4 analysis. After receipt of the report of Forensic Science Laboratory to the effect that the sample was of Charas, Challan was presented against the appellant.
.
4. Charge against the appellant was framed under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the Act"). Appellant did not plead guilty to the charge framed against him and claimed trial.
5. Prosecution examined 10 witnesses during trial in order to prove its case.
6. Appellant, when examined under Section 313 of the Code of Criminal Procedure, 1973 pleaded that he was innocent and had been falsely implicated in the case by the Police. Appellant did not examine any witness in his defence.
7. Learned trial Court, ordered conviction and sentence of the accused as mentioned in Paragraph-1 of the judgment, hence, present appeal by the appellant.
8. Mr. Vivek Sharma, learned counsel for the appellant has submitted that the appellant had been falsely involved in the case. No effort had been made to join an independent witness, hence, prosecution story stood falsified.
9. Mr. Vikrant Chandel, learned Deputy Advocate General, on the other hand, has opposed the appeal and has submitted that the ::: Downloaded on - 05/09/2022 20:03:17 :::CIS 5 statements of the official witnesses inspired confidence and the prosecution had been successful in proving its case.
10. PW-1 Constable Anup, PW-2 HHC Kalam Singh, PW-6 .
Constable Shakun Chauhan and PW-9 ASI Het Ram have deposed as per the prosecution story. The said witnesses have categorically deposed that at 9:30 p.m., they were present near Uttam Gas Service at NH-22 and appellant had tried to run away on seeing the Police party. On checking the rucksack, 2.200 Kg. Charas was recovered.
The contraband was taken into possession and was made into sealed parcel with seal bearing impression 'R'. Thereafter, the case property was produced before the Station House Officer, PW-8 Sub Inspector Reena.
11. PW-8 Sub Inspector Reena has categorically deposed that on 31.1.2016, Rukka was produced by Constable Shakun for registration of the FIR and on the basis of the same, FIR No.1 dated 31.1.2016 was registered. On 1.2.2016 at about 12:00 a.m., ASI Het Ram produced the case property before her and after checking the same it was re-sealed by her with seal bearing impression 'M'. After filling up the column of NCB form, the case property was deposited with the MHC of the Police Station.
12. PW-4 Constable Sudesh Kumar deposed that on 2.2.2016, he was handed over the case property for depositing the same with the Forensic Science Laboratory. After depositing the case property ::: Downloaded on - 05/09/2022 20:03:17 :::CIS 6 with the Forensic Science Laboratory, he had handed over the receipt to MHC, PMPS, New Shimla. Till the case property remained with him, he neither himself tampered with the same nor .
allowed anyone else to do the same.
13. PW-5 HC Manoj Kumar deposed that on 1.2.2016, case property was deposited with him by SI/SHO Reena. He had made the relevant entries in the register of the Police Station. On 2.2.2016, he had handed over the case property to Constable Sudesh for depositing the same with the Forensic Science Laboratory, Junga and on the same day, receipt had been handed over to him by Constable Sudesh after depositing the case property with Forensic Science Laboratory, Junga. The case property was received back in the Police Station alongwith report of the Forensic Science Laboratory on 26.2.2016.
14. All the spot witnesses were cross-examined at length on behalf of the appellant. However, nothing could be elicited from their cross-examination to discredit their testimonies. All the spot witnesses have successfully withstood the test of cross-examination and their testimonies inspire confidence. No material contradiction could be noticed from their depositions.
15. Although, it has been argued by learned counsel for the appellant that non association of independent witness was fatal to the prosecution case, but the non association of independent ::: Downloaded on - 05/09/2022 20:03:17 :::CIS 7 witness will not affect the outcome of the present case, as the recovery of the contraband from the appellant had been duly established. The entire link evidence also proves prosecution case.
.
Non association of independent witnesses is not always fatal to the prosecution case.
16. It has been held by the Hon'ble Supreme Court in Raveen Kumar vs. State of Himchal Pradesh, 2020(12) SCALE, as under:-
"19. It would be gainsaid that lack of independent witnesses are not fatal to the prosecution case. However, such omissions cast an added duty on Courts to adopt a greater-degree of care while scrutinizing the testimonies of the police officers, which if found reliable can form the basis of a successful conviction."
17. In the present case, since there is nothing on record to discredit the version of the prosecution witnesses, non association of independent witnesses will not help cause of the appellant. The case property after its recovery remained in the safe custody in the Police Station, as has been established by the material witnesses in this regard. As per the report of the Forensic Science Laboratory, the recovered contraband was opined as Charas. The appellant had failed to establish that he had any permit or licence to carry the recovered contraband. Since the prosecution had been successful in establishing its case with regard to the recovery of the contraband in question from the appellant, learned trial Court had rightly ordered ::: Downloaded on - 05/09/2022 20:03:17 :::CIS 8 the conviction and sentence of the appellant with regard to the charge framed against him. No ground for interference is made out.
18. Consequently, appeal filed by appellant is dismissed.
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Accordingly, judgment/order dated 24.11.2016/3.12.2016, passed by learned Special Judge(II), Shimla, Himachal Pradesh, in Sessions Trial No.21-s/7 of 2016, titled as State of Himachal Pradesh vs. Rameshwar Sharma, are upheld.
Pending miscellaneous application(s), if any, also stands disposed of.
r to
( Sabina )
Judge
( Sushil Kukreja)
Judge
September 5, 2022 (ks)
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