Himachal Pradesh High Court
State Of Himachal Pradesh vs Kamaljeet Singh And Another on 9 August, 2016
Author: Rajiv Sharma
Bench: Rajiv Sharma, Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Appeal No. 558 of 2012.
Reserved on: August 05, 2016.
Decided on: August 09, 2016.
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State of Himachal Pradesh ......Appellant.
Versus
Kamaljeet Singh and another .......Respondents.
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
of
Whether approved for reporting? 1 Yes.
For the appellant: Mr. M.A.Khan, Addl. AG.
For the respondents: Mr. Arun Kumar, Advocate.
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Justice Rajiv Sharma, J.
rt This appeal is instituted at the instance of the State against the judgment dated 31.8.2012, rendered by the learned Special Judge (FTC) Chamba, H.P., in Sessions trial No. 18/2012, whereby the respondents-accused (hereinafter referred to as the accused), who were charged with and tried for offences punishable under Sections 20, 25 & 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ND & PS Act), have been acquitted.
2. The case of the prosecution, in a nut shell, is that on 7.2.2012 around 5:00 AM, PW-13 ASI Ishwar Dass along with Varinder Singh, Const. Rumel Singh and others proceeded to Dhargalla, Salooni and surrounding area for picketing and patrolling in official vehicle No. HP-48- 0863. It is alleged that on the aforesaid date around 10:00 AM, near Salooni Chowk police officials laid Naka. PW-13 ASI Ishwar Dass 1 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 20:59:42 :::HCHP 2was involved in conversation with local residents PW-1 Hari Singh and PW-2 Sant Ram. In the meantime, motor cycle No. PB-57 B-8253 was seen .
coming from the side of Chakoli with two persons. PW-13 ASI Ishwar Dass signaled the motor cycle to stop but the vehicle did not stop and sped away. Due to mud on the highway at a distance of about 5 meters, it got skidded. The persons sitting on the motor cycle fell down. They were nabbed by PW-13 ASI Ishwar Dass and other police officials. The accused of disclosed their identities. The accused persons were apprised by PW-13 ASI Ishwar Dass of their legal right to be searched either before a rt Magistrate or a Gazetted Officer. The accused consented to be searched by the police officials present on the spot. Accused Rohit Mehra who was pillion rider of the motorcycle was carrying black coloured bag Ext. P-5.
On checking the bag, white coloured towel, Ext. P-2, black coloured jacket Ext. P-3, red coloured trouser Ext. P-4 having solid substance Ext. P-6 (charas) was found. Seizure memo Ext. PW-3/F was prepared. The charas weighed 2 kgs. Thereafter, it was again wrapped in red coloured trouser and again put in the bag. All the articles were put in cloth parcel Ext. P-1 and sealed with five impressions of seal "V". Impression of seal "V" was taken on separate piece of cloth Ext. PW-3/E. PW-13 ASI Ishwar Dass filled up columns No. 1 to 8 of the NCB forms in triplicate and also embossed seal impression of "V" on it. Rukka Ext. PW-3/G was scribed and handed over to PW-4 LHC Devi Singh to be delivered at PS Kihar for registration of FIR. One copy of rukka was also given to Const. Ajay Kumar to deliver the same to S.P. Chamba for information. FIR Ext. PW-11/A was registered. The resealing was undertaken. The case property was ::: Downloaded on - 15/04/2017 20:59:42 :::HCHP 3 deposited in the malkhana through PW-10 MHC Chaman Lal. The contraband was sent to FSL Junga. The report of the FSL is Ext. PA. The .
investigation was completed and the challan was put up after completing all the codal formalities.
3. The prosecution, in order to prove its case, has examined as many as fourteen witnesses. The accused were also examined under Section 313 Cr.P.C. According to them, they were falsely implicated. The of learned trial Court acquitted the accused, as noticed hereinabove. Hence, this appeal. It transpired during the course of hearing that the Registry rt has received the records in some other case titled as State vs. Sanjay @ Sanju, however, Mr. M.A. Khan, Addl. Advocate General appearing for the State has produced the record of the State for perusal of the Court. The same was perused with the consent of the parties.
4. Mr. M.A. Khan, learned Addl. Advocate General for the State has vehemently argued that the prosecution has proved its case against the accused. On the other hand, Mr. Arun Kumar, Advocate for the accused has supported the judgment of the learned trial Court dated 31.8.2012.
5. We have heard the learned counsel for both the sides and have also gone through the judgment and records of the case carefully.
6. PW-1 Hari Singh testified that he was having tea stall in Salooni bazaar. On 7.2.2012, in the morning around 10:00 AM, he was present in his tea stall at Salooni. The police came to his tea stall and obtained his signatures on certain papers. Except this, nothing has happened in his presence. He was declared hostile and cross-examined by ::: Downloaded on - 15/04/2017 20:59:42 :::HCHP 4 the learned Public Prosecutor. In his cross-examination by the learned Public Prosecutor, he denied that the accused were nabbed by the police.
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He denied that in his presence the police apprised both the accused of their legal right to be searched either before a Magistrate or a Gazetted Officer.
However, the fact of the matter is that he identified his signatures on Mark "X". He also identified his signatures on memo Mark "Y". He has not questioned the police about mark "X" and "Y", but appended his signatures of in both the papers to oblige the police. He denied that on the opening of the rucksack, one towel, jacket and red coloured pyjama were found and rt charas was wrapped in the pyjama. He denied that memo Mark "B" was prepared in his presence. Volunteered that he signed mark "B" on the asking of the police. He did not ask the police about the reasons of obtaining his signatures on memo mark "B" since he was in a hurry as he had personal work. He has also admitted his signatures on mark "C", "E", "F", "G" and "H".
7. PW-2 Sant Ram deposed that he was earning his livelihood by doing manual labour. Nothing happened in his presence nor he was aware if any charas was recovered. He was declared hostile and cross-examined by the learned Public Prosecutor. He has identified his signatures on Mark "X" in red colour as well as on marks "Y", "B", "E", "F", "G" and "H".
8. PW-3 HC Virender Singh deposed that on 7.2.2012 around 10:00 AM, he along with Const. Ajay Kumar and others was present in connection of traffic checking/picketing at Salooni Chowk. At around 10:15 AM, one black coloured motor cycle No. PB-57 B-8253 came from the side of Chakoli with two persons on board. It was signaled to stop by ASI Ishwar ::: Downloaded on - 15/04/2017 20:59:42 :::HCHP 5 Chand. The accused sped away with the motor cycle. The accused were nabbed. They disclosed their identity. The accused persons were apprised .
by PW-13 ASI Ishwar Dass of their legal right to be searched either before a Magistrate or a Gazetted Officer. Both the accused persons were also apprised that Block Development Officer, Magistrate and other Gazetted Officers were available at Salooni and if they so desire, their personal search could be carried out in their presence. The accused consented to be of searched by the police officials present on the spot vide Ext. PW-3/A and PW-3/B. No incriminating material was recovered from their possession.
rt The rucksack which was carried by accused Rohit Mehra was searched. It contained charas. The charas weighed 2 kgs. Rucksack was sealed in cloth parcel with five impressions of seal "V". Rukka Ext. PW-3/G was prepared and sent to PS Kihar for registration of FIR through Const. Devi Singh. In his cross-examination, he deposed that no vehicle came in between the time when witnesses came there. There was no vehicle except the motor cycle in question. There was no shop on the spot. He denied that PWD Rest House, SDM Office, Govt. Sr. Secondary School were nearby to the spot. He scribed the rukka at the instance of ASI Ishwar Dass.
9. PW-4 LHC Devi Singh testified that on 7.2.2012, he was associated in the investigation by the police. Rukka Ext. PW-3/G was handed over to him by ASI Ishwar Dass at 11:45 AM to deliver the same at PS Kihar.
10. PW-5 Const. Ajay Kumar has also deposed the manner in which the motor cycle was intercepted. The accused were nabbed. The accused persons were apprised by PW-13 ASI Ishwar Dass of their legal ::: Downloaded on - 15/04/2017 20:59:42 :::HCHP 6 right to be searched either before a Magistrate or a Gazetted Officer. The accused consented to be searched by the police officials present on the .
spot. Charas from the bag carried by accused Rohit Mehra was recovered.
The charas weighed 2 kgs. The sealing proceedings were completed on the spot. In his cross-examination, he deposed that between the time of their reaching at the spot and arrival of accused on the motor cycle, no vehicle crossed through that place. The place where they held picketing, there was of no shop. Volunteered that the shops were at a distance of 150 meters towards Salooni.
11. rt PW-6 Const. Moti Lal deposed that on 7.2.2012 ASI Ishwar Dass brought one parcel Ext. P-1 to the Police Station Kihar. It contained white towel, red coloured trouser, black jacket and black bag. He also disclosed that the red coloured trouser had 2 kg. charas. The parcel was duly sealed with five impressions of seal "V". The parcel was delivered to SHO PS Kihar for resealing. The SHO resealed the same with three impressions of "K". Seal "K" after used was handed over to him.
12. PW-8 Shekhar deposed that accused Kamajeet used to work in his Dhaba at Kishanpura Chowk, Jallandhar. He worked for four months in the hotel and earned Rs. 20,000/-. He told him that he would purchase motor cycle. He purchased motor cycle for consideration of Rs. 41,000/-.
He gave him Rs. 21,000/- from his own pocket. He left his Dhaba in the month of January, 2012. He purchased the motor cycle in the month of December, 2011. He identified the motor cycle owned by the accused Kamaljeet.
::: Downloaded on - 15/04/2017 20:59:42 :::HCHP 713. PW-9 HC Madan Lal deposed that he was posted as General Duty Constable in PS Kihar since 2010. MHC Chaman Lal, PS Kihar .
handed over to him duly sealed parcel Ext. P-1 having three impressions of seal "K" and five impressions of seal "V" each along with papers, NCB forms in triplicate, memo and impressions of seal "V" and "K" vide RC No. 11/12 on 9.2.2012 to deliver the same at FSL, Junga. On 13.2.2012 he delivered the same at FSL Junga vide RC No. 11/12 and on his return handed over of the RC to MHC Chaman Lal, PS Kihar. So long as the case property remained in his possession, it was safe and intact.
14. rt PW-10 HC Chaman Lal deposed that on 7.2.2012, IO deposited with him parcel Ext. P-1 having five impressions of seal "V" and three impressions of seal "K" containing black coloured jacket, white towel, red coloured trouser having 2 kgs charas along with impressions of seal "V"
AND "K" and NCB form in triplicate. He entered these articles in register No. 19. On 9.2.2012 vide RC No. 11/12, he handed over duly sealed parcel Ext. P-1 with NCB form in triplicate, three specimen impressions each of seal "V" and seal "K" to HHC Madan Lal to be deposited the same at FSL Junga for chemical analysis. He also handed over copy of FIR, seizure memo and docket prepared by IO ASI Ishwar Dass to HHC Madan Lal.
After depositing the case property at FSL Junga, HHC Chaman Lal deposited RC No. 11/12 with him.
15. PW-11 ASI Onkar Singh deposed that SHO PS Kihar was on leave. Const. Devi Singh delivered to him rukka Ext. PW-3/G on 7.2.2012.
He registered FIR Ext. PW-11/B. He prepared the case file and handed over the same for investigation to Const. Devi Singh. On the same date in ::: Downloaded on - 15/04/2017 20:59:42 :::HCHP 8 the evening around 8:15 PM, ASI Ishwar Dass handed over to him the case property duly sealed with five impressions of seal "V", specimen .
impressions of seal "V" and NCB form in triplicate. Ext. P-1 was handed over to him for resealing. Accordingly, he resealed parcel Ext. P-1 with impressions of seal "K" in the presence of witnesses Const. Moti Ram and Const. Hoshiar Singh. He filled in column Nos. 9 to 11 of NCB form in triplicate. Thereafter, he deposited the case property with MHC Chaman of Lal, PS Kihar.
16. PW-13 ASI Ishwar Dass testified the manner in which the rt accused were apprehended, search, seizure and sealing proceedings were completed on the spot.
17. The witnesses, referred to above, are the material witnesses.
According to the statement of PW-3 HC Virender Singh accused were travelling on the motor cycle. They tried to flee. They were apprehended.
They revealed their identities. The accused persons were apprised by PW-
13 ASI Ishwar Dass of their legal right to be searched either before a Magistrate or a Gazetted Officer. The accused consented to be searched by the police officials present on the spot. Rucksack carried by accused Rohit Mehra was searched. It contained charas. The charas weighed 2 kgs. All the codal formalities were completed on the spot, including preparation of rukka, filling up of NCB form in triplicate. Rukka Ext. PW-3/G was sent to the PS Kihar. FIR was registered. The statement of PW-3 HC Virender Singh was duly corroborated by official witnesses PW-5 Const. Ajay Kumar and PW-13 ASI Ishwar Dass.
::: Downloaded on - 15/04/2017 20:59:42 :::HCHP 918. Independent witnesses PW-1 Hari Singh and PW-2 Sant Ram have not supported the case of the prosecution in its entirety. They were .
declared hostile and cross-examined by learned Public Prosecutor.
However, they have admitted their signatures on memos "B", "E", "F", "G"
and "H".
19. The case property was produced before PW-11 ASI Onkar Singh for resealing. He resealed the same with three impressions of seal of "K". He also filled in relevant columns 9 to 11 of the NCB form in triplicate.
The case property was deposited with PW-10 HC Chaman Lal. PW-10 HC rt Chaman Lal deposed that the case property was deposited with him. He sent the same to FSL Junga through PW-9 HC Madan Lal. Though, PW-9 HC Madan Lal has stated that it was delivered to him on 9.2.2012, but he deposited the same at FSL Junga on 13.2.2012. He has specifically stated that so long as the case property remained in his possession, it remained safe and intact. The report of the FSL is Ext. PA. The case property has reached FSL Junga intact. Kihar is situated in a remote area. The Court can take judicial notice that it takes about 18-20 hours to reach Shimla from Chamba and if PW-9 HC Madan Lal has left Chamba on 9th, he was bound to reach Shimla on 10th or 11th. Thus, there is no delay in depositing the case property at FSL Junga. Moreover, PW-9 HC Madan Lal has categorically deposed that so long as the case property remained with him, it was safe and intact. PW-10 HC Chaman Lal has also deposed that PW-9 HC Madan Lal after depositing the case property at FSL Junga vide RC No. 11/12, re-deposited the RC with him and he accordingly entered ::: Downloaded on - 15/04/2017 20:59:42 :::HCHP 10 the same in register No. 21. He has proved RC No. 11/12 vide Ext. PW-
10/C. .
20. Their lordships of the Hon'ble Supreme Court in the case of State of Uttar Pradesh vs. Naresh and others, reported in (2011) 4 SCC 324, have held that normal discrepancies are bound to occur due to normal errors of observation, errors of memory due to lapse of time and due to mental disposition. Trivial matters which do not affect core of of prosecution case should not be made a ground on which evidence is rejected in its entirety. Their lordships have held as follows:
rt "18. The High Court has given undue importance to the minor contradictions in the statement of Subedar (PW.1) and Balak Ram (PW.5) as one of them had stated that the I.O. reached the place of occurrence at 10.15 p.m. and another has stated that he reached about mid night. The incident occurred in mid October 1979. This is the time when the winter starts and in such a fact-situation no person is supposed to keep record of exact time particularly in a rural area.
Everybody deposes according to his estimate. More so, the statement had been recorded after a long lapse of time. Therefore, a margin of 1- 1/2 hours remained merely a trivial issue.
30. In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety.The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence.
"Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility."::: Downloaded on - 15/04/2017 20:59:42 :::HCHP 11
Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of .
the case/materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited. [Vide:
State Represented by Inspector of Police v. Saravanan & Anr., AIR 2009 SC 152; Arumugam v.State, AIR 2009 SC 331; Mahendra Pratap Singh v. State of Uttar Pradesh, (2009) 11 SCC 334; and Dr. Sunil Kumar Sambhudayal Gupta & Ors. v. State of Maharashtra, JT 2010 (12) SC 287].
31. The High Court has also fallen into error in giving significance to a trivial issue, namely, that in respect of the morning incident all of the accused had not been named in the complaint/NCR."
21. Their lordships of the Hon'ble Supreme Court in the case of rt Gangabhavani vs. Rayapati Venkat Reddy and others, reported in (2013) 15 SCC 298, have held that in case there are minor contradictions in the depositions of the witnesses the same are bound to be ignored as the same cannot be dubbed as improvements and it is likely to be so as the statement in the court is recorded after an inordinate delay. In case the contradictions are so material that the same go to the root of the case, materially affect the trial or core of the prosecution case, the court has to form its opinion about the credibility of the witnesses and find out as to whether their depositions inspire confidence. Their lordships have held as follows:
"12. Thus, the position of law in cases where there is a contradiction between medical evidence and ocular evidence stands crystallised to the effect that though the ocular testimony of a witness has greater evidentiary value vis-à-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all ::: Downloaded on - 15/04/2017 20:59:42 :::HCHP 12 possibility of the ocular evidence being true, the ocular evidence may be disbelieved.
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CONTRADICTIONS IN EVIDENCE:
13. In State of U.P. v. Naresh, (2011) 4 SCC 324, this Court after considering a large number of its earlier judgments held:
"In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do rt not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence.
Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility."
Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited."
A similar view has been re-iterated by this Court in Tehsildar Singh & Anr. v. State of U.P., AIR 1959 SC 1012; Pudhu Raja & Anr. v. State, Rep. by Inspector of Police, JT 2012 (9) SC 252; and Lal Bahadur v. State (NCT of Delhi), (2013) 4 SCC 557).
14. Thus, it is evident that in case there are minor contradictions in the depositions of the witnesses the same are bound to be ignored as the same cannot be dubbed as improvements and it is likely to be so as the statement in the court is recorded after an inordinate delay. In case the contradictions are so material that the same go to the root of ::: Downloaded on - 15/04/2017 20:59:42 :::HCHP 13 the case, materially affect the trial or core of the prosecution case, the court has to form its opinion about the credibility of the witnesses and find out as to whether their depositions inspire confidence."
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22. Their lordships of the Hon'ble Supreme Court in the case of Madhu alias Madhuranatha and another vs. State of Karnataka, reported in (2014) 12 SCC 419, have held that minor discrepancies on trivial matters which do not affect the core of the case of the prosecution of must not prompt the Court to reject the evidence in its entirety. Irrelevant details which do not, in any way, corrode the credibility of a witness should be ignored. The court has to examine whether evidence read as a whole rt appears to have a ring of truth. The Court is not supposed to give undue importance to omissions, contradictions and discrepancies which do not go to the heart of the matter. Their lordships have further held that the evidence of police officials cannot be discarded merely on the ground that they belong to the police force and are either interested in the investigation or in the prosecution. There can be no prohibition to the effect that a policeman cannot be a witness or that his deposition cannot be relied upon if it inspires confidence. Their lordships have held as follows:
"15. It has been canvassed on behalf of the appellants that there are discrepancies and contradictions in the depositions of witnesses like the timings when deceased was seen last with the appellants and the distances of places etc. do not tally. Thus, their evidence cannot be relied upon.
16. In Rohtash Kumar v. State of Haryana, JT 2013 (8) SC 181, this Court considered the issue of discrepancies in the depositions. It is a settled legal proposition that while appreciating the evidence of a witness, minor discrepancies on trivial matters which do not affect the core of the case of the prosecution must not prompt the court to reject the evidence in its entirety. Therefore, irrelevant details which do not in any way corrode the credibility of a witness should be ignored. The ::: Downloaded on - 15/04/2017 20:59:42 :::HCHP 14 court has to examine whether evidence read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinize the evidence, more particularly keeping in view the deficiencies, drawbacks and infirmities pointed .
out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witnesses and whether the earlier evaluation of the evidence is shaken, so as to render it unworthy of belief. Thus, the court is not supposed to give undue importance to omissions, contradictions and discrepancies which do not go to the heart of the matter, and shake the basic version of the prosecution witness. A similar view has been re-iterated in State of U.P. v. M.K. Anthony, AIR 1985 SC 48; State rep. byInspector of Police v. Saravanan & Anr., AIR 2009 SC 152; and Vijay @ Chinee v. State of M.P., (2010) 8 SCC 191.
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17. Learned counsel for the appellants has vehemently argued that in some of the recoveries, though a large number of people were available, but only police personnel were made recovery witnesses. Thus, the whole prosecution case becomes doubtful. rt
18. The term 'witness' means a person who is capable of providing information by way of deposing as regards relevant facts, via an oral statement, or a statement in writing, made or given in Court, or otherwise. In Pradeep Narayan Madgaonkar & Ors. v. State of Maharashtra, AIR 1995 SC 1930, this Court dealt with the issue of the requirement of the examination of an independent witness, and whether the evidence of a police witness requires corroboration. The Court held that though the same must be subject to strict scrutiny, however, the evidence of police officials cannot be discarded merely on the ground that they belong to the police force and are either interested in the investigation or in the prosecution. However, as far as possible the corroboration of their evidence on material particulars should be sought.(See also: Paras Ram v. State of Haryana, AIR 1993 SC 1212; Balbir Singh v. State, (1996) 11 SCC 139; Kalpnath Rai v. State (Through CBI), AIR 1998 SC 201; M. Prabhulal v. Assistant Director, Directorate of Revenue Intelligence, AIR 2003 SC 4311; and Ravinderan v. Superintendent of Customs, AIR 2007 SC 2040).
19. Thus, a witness is normally considered to be independent unless he springs from sources which are likely to be tainted and this usually means that the said witness has cause to bear such enmity against the accused so as to implicate him falsely. In view of the above, there can be no prohibition to the effect that a policeman cannot be a witness or that his deposition cannot be relied upon if it inspires confidence.
20. This Court in Laxmibai (dead) Thr. L.Rs. & Anr. v. Bhagwantbuva (dead) Thr. L.Rs. & Ors., AIR 2013 SC 1204 examined a similar issue and held:
"Furthermore, there cannot be any dispute with respect to the settled legal proposition, that if a party wishes to raise any ::: Downloaded on - 15/04/2017 20:59:42 :::HCHP 15 doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by the other party, as being untrue. Without .
this, it is not possible to impeach his credibility. Such a law has been advanced in view of the statutory provisions enshrined in Section 138 of the Evidence Act, 1872, which enable the opposite party to cross-examine a witness as regards information tendered in evidence by him during his initial examination in chief, and the scope of this provision stands enlarged by Section 146 of the Evidence Act, which permits a witness to be questioned, inter-alia, in order to test his veracity. Thereafter, the unchallenged part of his evidence is to be relied upon, for the reason that it is impossible for the witness to of explain or elaborate upon any doubts as regards the same, in the absence of questions put to him with respect to the circumstances which indicate that the version of events provided by him, is not fit to be believed, and the witness himself, is unworthy of credit. Thus, if a party intends to rtimpeach a witness, he must provide adequate opportunity to the witness in the witness box, to give a full and proper explanation. The same is essential to ensure fair play and fairness in dealing with witnesses. (See: Khem Chand v. State of Himachal Pradesh, AIR 1994 SC 226;State of U.P. v. Nahar Singh (dead) & Ors., AIR 1998 SC 1328; Rajinder Pershad (Dead) by L.Rs. v. Darshana Devi (Smt.), AIR 2001 SC 3207;
and Sunil Kumar & Anr. v. State of Rajasthan, AIR 2005 SC 1096)".
23. The learned trial Court has also relied upon the decision in the case of Sunil vs. State of Himachal Pradesh and other connected matters, reported in Latest HLJ 2010 (HP) 207, while acquitting the accused. This decision has been overruled by the Full Bench of this Court in the case of State of H.P. vrs. Mehboon Khan and analogous matters, reported in Latest HLJ 2014 (HP) (FB) 900. The Full Bench of this Court has categorically held that there is no legal requirement of the presence of particular percentage of resin to be there in the sample and the presence of the resin in purified or crude form is sufficient to hold that the sample was that of Charas. It has been held as follows:
::: Downloaded on - 15/04/2017 20:59:42 :::HCHP 16"..............The separated resin is cannabis resin not only when it is in 'purified' form, but also when in 'crude' form or still mixed with other parts of the plant. Therefore, the resin mixed with other parts of the plant i.e. in 'crude' form is also charas .
within the meaning of the Convention and the Legislature in its wisdom has never intended to exclude the weight of the mixture i.e. other parts of the plant in the resin unless or until such mixture proves to be some other neutral substance and not that of other parts of the cannabis plant. Once the expert expressed the opinion that after conducting the required tests, he found the resin present in the stuff and as charas is a resinous mass and after conducting tests if in the opinion of the expert, the entire mass is a sample of charas, no fault can of be found with the opinion so expressed by the expert nor would it be appropriate to embark upon the admissibility of the report on any ground, including non-mentioning of the percentage of tetrahydrocannabinol or resin contents in the sample.............
rt f. We are also not in agreement with the findings recorded by the Division Bench in Sunil's case that " mere presence of tetrahydrocannabinol and cystolithic hair without there being any mention of the percentage of tetrahydrocannabinol in a sample of charas is not an indicator of the entire stuff analyzed to be charas" for the reason that the statute does not insist for the presence of percentage in the stuff of charas and mere presence of tetrahydrocannabinol along with cystolithic hair in a sample stuff is an indicator of the same being the resin of cannabis plant because the cystolithic hair are present only in the cannabis plant. When after observing the presence of tetrahydrocannabinol and cystolithic hair, the expert arrives at a conclusion that the sample contains the resin contents, it is more than sufficient to hold that the sample is of charas and the view so expressed by the expert normally should be honoured and not called into question. Of course, neutral material which is not obtained from cannabis plant cannot be treated as resin of the cannabis plants. The resin rather must have been obtained from the cannabis plants may be in 'crude' form or 'purified' form. In common parlance charas is a hand made drug made from extract of cannabis plant. Therefore, any mixture with or without any neutral material of any of the forms of cannabis is to be considered as a contraband article. No concentration and percentage of resin is prescribed for 'charas' under the Act.."
24. Now, as far as the question of ownership of the motor cycle is concerned, it has come on record in the statement of PW-8 Shekhar, an ::: Downloaded on - 15/04/2017 20:59:42 :::HCHP 17 independent witness, that accused Kamal Jeet had purchased the motorcycle. PW-8 Shekhar has also identified the motorcycle.
.
25. Since the charas was recovered from the rucksack carried by accused Rohit Mehra, it was not necessary to even ask the accused for their consent to be searched either before a Magistrate or a Gazetted Officer. However, fact of the matter is that Section 50 of the ND & PS Act was also complied with. Thus, the prosecution has proved the case against of the accused under Sections 20, 25 and 29 of the ND & PS Act.
26. Accordingly, the appeal is allowed. The judgment of acquittal rt rendered by the learned trial Court in Sessions Trial No. 18/2012 dated 31.8.2012 is set aside. Accused are convicted under Sections 20, 25 and 29 of the ND & PS Act. The accused be produced for hearing on quantum of sentence on 12.8.2016. Production warrants be prepared accordingly and sent to the quarter concerned for execution, forthwith.
27. However, before parting with the judgment, it would be pertinent to take note of ever increasing menace of drinking of alcohol on State/National Highways, public places and open spaces by the tourists and local people. These persons also park their vehicles on the National Highways/State Highways and other roads in a haphazard manner impeding smooth flow of traffic. The consumption of alcohol is a serious threat to health and welfare of the people. It also has deleterious effect on children of impressionable age. The bottles are thrown causing environmental degradation and nuisance to the public using State/National Highways, public places and open spaces. The public peace is also disturbed leading to law and order problem. These persons after ::: Downloaded on - 15/04/2017 20:59:42 :::HCHP 18 consuming liquor drive their vehicles on National Highways/State Highways and other roads posing threat to their lives as well as to the lives .
of other commuters. Accordingly, all the Superintendents of Police in the State of Himachal Pradesh through Secretary (Home) to the Government of Himachal Pradesh are directed to ensure that no person is permitted to drink alcohol on State/National Highways, public places and open spaces, forthwith. They are further directed to constitute special squads to arrest of this nuisance on the State/National Highways, public places and open spaces. Stern action be also taken against these persons under the rt existing provisions of IPC, Excise Act, Motor Vehicles Act and the rules framed thereunder. All the religious heads, including of Deras are requested to appeal to youth to stay away from the drugs. All the religious heads are also requested to preach the deleterious effects of drugs on the health. The State Government is also directed to make suitable amendment in the Excise Act, providing heavy fine/penalty for consumption of alcohol on State/National Highways, public places and open spaces, within a period of six months from today.
( Rajiv Sharma ), Judge.
August 09, 2016, ( Sureshwar Thakur ),
(karan) Judge.
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