IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 131/2007 Judgment reserved on 2.12.2009 Date of decision: 10 .12. 2009 Deen Mohammad …..Appellant Versus State of H.P. ……Respondent Coram: The Hon’ble Mr. Justice Surjit Singh, J. The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 . For the Appellant: Ms. Kamlesh Shandil, Advocate. For the respondent : Mr. Ramesh Thakur Assistant Advocate General. Surinder Singh, J. Appellant has challenged his conviction passed by the learned trial Court under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, in short ‘the Act’ whereby he has been sentenced to undergo imprisonment for a period of ten years and to pay a fine of rupees one lac and in default of 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. yes - 2 - payment of fine to undergo rigorous imprisonment for two years, allegedly for possessing 5 kilograms of charas. In short, prosecution case, as emerges from the evidence on record, can be stated thus. On 9.3.2006, PW13 Inspector SHO Jatinder Kumar was heading a Police patrol party. They put a ‘naka’ at the place known as “Jukianai-nullah” in District Chamba, H.P. Around 6.30 p.m., a vehicle bearing registration No. HP01-C-1- 3004 (Bolero) came from Tissa side. It was stopped. PW1 Tejinder Singh and PW2 Chaman Lal were the occupants of the said vehicle. They were alighted and Police started searching the vehicle. In the meantime, they spotted the appellant coming from a short-cut to Shakti-Dehra link road, carrying a polythene bag in his hand. On seeing the Police party, he tried to escape but was nabbed by them at a short distance. The Police associated Tejinder Singh and Chaman Lal during the search of the polythene bag. It was found containing charas in the shape of batties and balls. The weights and scale were arranged. The charas was weighed. It came - 3 - out to be 5 kilograms. From the entire recovered stuff, two samples of 25 grams each were separated and sealed in two empty cigarette packets with a seal producing impression of English letter ‘B’. The remaining bulk was also sealed with the same seal along with the polythene bag, in a cloth parcel. Specimen seal impressions were also taken on a piece of cloth Ext. P2. The seal, after its use was handed over to PW1 Tejinder Singh. The Investigating Officer filled-up NCB forms in triplicate, one of which is Ext. PW5/C. Case-property was taken into possession vide seizure memo Ext. PW1/A in the presence of witnesses. Its copy was also supplied to the appellant. Ruka Ext. PW9/A was prepared on the spot and sent to the Police Station for the registration of the case through PW11 Constable Latif Mohammad, on its basis FIR Ext. PW5/B was registered by PW9 ASI Daulat Ram. PW13 Inspector Jatinder Kumar prepared the inventory Ext. PW13/A and handed over the case file at about 8.45 - 4 - p.m. on 9.3.2006 along with case-property list and other papers to PW10 ASI Onkar Singh for further investigation. ASI Onkar Singh prepared the site plan Ext. PW10/A and recorded the statements of witnesses Tejinder Singh, H.C. Hans Raj and Chaman Lal under Section 161 of the Code of Criminal Procedure Appellant was arrested and grounds of arrest vide Ext. PW10/D were apprised to him. Case-property was produced before PW9 ASI Daulat Ram. He re-sealed the same with his seal, producing the impression of English letter ‘D’. Its seal-impressions were also taken on a separate piece of cloth. Thereafter PW9 ASI Daulat Ram deposited the case-property with PW5 MHC Ramesh Chand along with both the specimens of seals and NCB forms; which were entered in the Malakhana Register. On 11.3.2006 a special-report was prepared and sent to Superintendent of Police, Chamba through Constable Deepak Kumar (PW8). On 13.3.2006 a sample parcel was sent to C.T.L. Kandaghat through PW11 constable Latif Mohammad along with NCB - 5 - forms, which were taken by him, vide RC No. 26/2006 and deposited it in the Laboratory for analysis on the same day. He obtained receipt on the RC and handed it back to the MHC aforesaid on his return to the Police Station. Sample was analyzed in the Laboratory. It tested positive and was found to have contained 22.05% of resin of cannabis plant and was opined to be charas. To this effect, Laboratory issued the report Ext. PW5/C on the NCB form itself. On completing the investigation, challan was presented in the court for the trial of the appellant. Appellant was accordingly charge- sheeted for the aforesaid offence. He pleaded not guilty and claimed trial. To prove its case, prosecution examined its witnesses and appellant was also examined under Section 313 of the Code of Criminal Procedure. The circumstances which were found attendant upon the appellant were put to him. His case was that of denial simplicitor and did not offer to give any explanation to - 6 - any of the incriminating circumstances. No evidence in defense was led by the appellant. At the end of the trial, learned trial court convicted and sentenced the appellant, as aforesaid which is under challenge in this appeal. Ms. Kamlesh Shandil, Advocate appearing for the appellant vehemently argued that the independent witnesses have not supported the case of the prosecution and there are material contradictions in the statements of the official witnesses with respect to the place of recovery and further that prosecution could not connect the report of the Chemical Analyst with the alleged recovered stuff. Therefore, the judgment of conviction and sentence is bad in law, and deserves to be set aside. Mr. Ramesh Thakur, learned Assistant Advocate General supported the impugned judgment of conviction and sentence and submitted that the independent witnesses are from nearby places of District Chamba to which the appellant belonged and they had sided - 7 - with the appellant to save him. He also submitted that the contradictions regarding the place of recovery are very minor in nature which do not make the case of prosecution doubtful. He also submitted that it is a proved case of huge recovery from the possession of the appellant, which cannot be said to be a planted one. The appellant had also failed to show any motive or malice of the police to frame him in a false case. The link evidence in the case is completely established and the appellant stands connected with possession of the contraband. We have given our thoughtful consideration to the rival contentions of the parties and have carefully reappraised the evidence on record. PW13 Inspector SHO Jatinder Kumar categorically stated that when they were busy in checking vehicle NO. HP01C-3004 (Bolero), in the meantime, appellant was found seen coming from a short-cut to Shakti-Dehra link road with a polythene bag in his hand. On seeing the police party, he tried to escape but the Police - 8 - party nabbed him at a short-distance. Tejinder Kumar and Chaman Lal both witnesses also came to the spot where the appellant was apprehended. Police had asked about his identity and on search of his bag, PW13 recovered 5 kilograms charas out of which 25 grams each were separated and sealed into two separate parcels with seal impression ‘B’ and remaining bulk was also sealed with the same seal in a cloth parcel at nine places. During the trial, he identified the bulk parcel Ext. P1 and one of the sample parcels Ext. P3 to be the same. He also proved the sample of seal Ext. P2 taken on the spot. He also testified that NCB forms in triplicate were filled-in on the spot, one of which is Ext. PW5/C. He also proved seizure memo Ext. PW1/A prepared in the presence of the witnesses aforesaid which were signed by each of them. He stated that he had prepared the inventory of the case property Ext. PW13/A and handed it over to ASI Onkar Singh (PW10). PW2 Constable Chaman lal, PW4 Head Constable Hans Raj and PW11 Latif Mohammad were also accompanying PW13 - 9 - Inspector/S.H.O. Jatinder Kumar. They have corroborated his version with respect to the recovery of the contraband from the appellant and also taking of the sample, in the manner deposed by PW13 Inspector Jatinder Kumar. Although, PW13 Jatinder Kumar in his cross examination stated that appellant was spotted at a distance of 6-7 meters from the place of naka and the entire short-cut was not visible from that place, whereas, PW11 Constable Latif Mohammad, stated that the appellant was nabbed by the said Inspector at a distance of 50-60 yards from the road but this contradiction is no contradiction on which the whole prosecution case can be rejected. In fact, PW13 Jatinder Kumar has stated about the distance where the appellant was spotted and PW11 deposed about the distance where the appellant was nabbed. Both have stated it in different context. Further the learned counsel for the appellant pointed out that PW12 constable Chaman Lal stated that he did not know which of the documents were - 10 - filled in and scribed by which of the official/officer. This argument has been raised, only to be rejected as it has no bearing on the merits of the case. It was also pointed out that PW3, Constable Manohar Lal stated that he brought the weights and scale from a shop at Kayani Bus Stand for weighing the recovered charas which was about two kilometers away from the spot and he returned to the spot at about 8.30 p.m., whereas PW4 Head Constable Hans Raj stated that place of Naka was about one kilometer from village Kayani. Therefore, this contradiction makes the case doubtful. We have also examined this argument but this does not make the prosecution case a suspect because village Kayani could be situated farther to its bus-stop. None of the witnesses was cross-examined to the effect that the bus-stop was in that village itself and the said constable had gone on foot and he could not have returned within 15/20 minutes of his departure. Thus there is no inconsistency in the statements of witnesses which goes to the root of the case. - 11 - Further to complete the link, PW10 ASI Onkar Singh was examined. He stated that at about 8.45 p.m. PW13 SHO Jatinder Kumar had handed over the case property to him which was duly sealed along with seal impressions, two NCB forms, two copies of ruka, seizure memo and one zimini vide inventory list Ext. PW7/B. He further testified that he had produced the case property before ASI Daulat Ram, Police Station, Chamba. He received the same and re-sealed it with seal impression ‘D’ in the presence of PW7 Constable Latif Mohammad and prepared the memo Ext. PW7/A to this effect. This fact also stands corroborated by PW9 ASI Daulat Ram. He (PW9) also stated that he made an endorsement on the NCB form against column No. 8 mentioning that the case property was re-sealed with seal ‘D’ under his signatures which fact find mentioned therein. PW9 ASI Daulat Ram testified about depositing the case property with PW5 M.H.C. Ramesh Chand. PW5 further stated that at the time of its deposit, sample seal and NCB forms were also deposited - 12 - with him in the Malkhana. He also stated that the case property was bearing seals of ‘B’ and ‘D’ and he made entries of the case property in the Malkhana Register, which was also brought by him during the trial of the case. He further stated that on 11.3.2006 he had sent one sample parcel along with NCB form, sample of seals, copy of seizure memo and copy of FIR through PW11 Constable Latif Mohammad vide RC No. 6/2006 for its analysis to C.T.L. Kandaghat, which was deposited by him and on his return on 13.3.2006, he handed over its receipt on the RC to him and proved its copy Ext. PW5/A which was correct as per the original brought by him. PW5 and PW11 both had overruled any possibility of tampering with the sample parcel as long as they had handled it till its deposit in the Laboratory. The above critical examination of the evidence makes it absolutely clear that the appellant was found in possession of the recovered charas, as alleged. It also stands proved that two samples were separated from the recovered bulk which were properly sealed on the spot and - 13 - deposited in the Malkhana from where, one sample parcel was sent for its analysis which tested positive. As discussed above in detail, the link evidence in the present case stands fully established. There is absolutely no break in the chain to cause doubt in the prosecution case. The independent witnesses being local residents have a motive to support the appellant. However, they have admitted their signatures on the sample parcels and seizure memo. They were also contradicted with their statements under Section 161 of the Code of Criminal Procedure. On the other hand, the testimony of official witnesses is inspiring confidence and the learned trial Court had rightly put the reliance on their testimonies. For the reasons aforesaid, we do not find that the above contradictions, which were pointed out in the statements of the official prosecution witnesses are material in nature for doubting the prosecution case. Further there is no plausible explanation offered by the appellant for his false implication. - 14 - Therefore, the appeal is without any merit, it is accordingly dismissed. (Surjit Singh),J. December 10th, 2009 (Surinder Singh),J (cm)