IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.43 of 2011. Judgment reserved on: 17.8.2011. Decided on: August 29th , 2011. ____________________________________________________________ Devinder Thakur. ……..Appellant. Versus State of H.P. ……..Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Mr. Mukul Sood, Advocate, vice Mr. B.B.Vaid, Advocate. For the respondent : Mr. A.K.Bansal, Addl. Advocate General with Mr. P.M.Negi, Dy. Advocate General. _________________________________________________________ SURINDER SINGH,J: The appellant herein was charge-sheeted, tried and convicted for the offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, in short ‘the Act’, and sentenced by the learned trial Court to undergo rigorous imprisonment for a period of four year and to pay a fine of `5,000/- and in default of payment of fine to further undergo imprisonment for six months, for keeping in his possession 480 grams of Charas. His pre- trial period of detention was set of against the sentence passed. Feeling aggrieved by the impugned Whether reporters of the Local papers are allowed to see the judgment? - 2 - judgment of conviction and sentence, the present appeal has been filed by the appellant. 2. In short the prosecution story as emerges from the evidence on record, can be stated thus. On 20th February, 2009, PW7 Smt. Shakuntla Sharma, Inspector/ SHO, Police Station Sadar, Shimla alongwith ASI Vijay Kumar and PW3 Constable Yogesh Dhiman etc. were on routine patrolling duty in Lower Bazaar Shimla and in the Bus stand area. When she was in the Middle Bazaar, she noticed PW1 SI Gulzari Lal, Additional SHO, Police Station Sadar, Shimla near the shop of PW2 Rajesh Sharma alongwith some other police officials engaged in checking of some traders. (ii) PW7 aforesaid enquired from SI Gulzari Lal about the official business being done by him. In the meantime, the appellant was noticed coming from the opposite direction with his gun and a bag hung on his shoulder in front of the shop of PW2 Rajesh Sharma. He was stopped and was asked to produce his gun licence. Appellant produced the photo copy of the gun licence which indicated his identity. On being further asked about the original licence, - 3 - he informed that he was a Security Guard in HDFC Bank and the original licence has been with the Bank authorities. PW7 Inspector/ SHO Shakuntla Sharma asked the appellant to get gun inspected. Appellant took off the cover of the gun. It was SBBL gun, containing the particulars, as mentioned in the photocopy of the gun licence produced by him. In that consequence, the appellant showed his eagerness to get rid off the police. His anxiety was enough to raise suspicion, as such, Inspector/ SHO Shakuntla Sharma aforesaid directed him to get his bag Ext.P8 checked up in the presence of Vasudev and PW2 Rajesh Sharma and other police officials who were with her. On the search of the bag, it was found containing Goor (Jaggery), Sugar, Besan (gram flour), Sagu Dana, a bottle of half liter mustard oil and few other small articles. It also contained a polythene envelope Ext.P5, which contained Charas Ext.P7, in a white envelope Ext.P6. Charas in the shape of billets. On its weightment, it turned out to be 480 grams, out - 4 - of which two samples of 25 grams each were drawn and sealed separately with seal producing the impression of English alphabet “A”. The facsimile of the seal used was separately taken on a piece of cloth. NCB forms in triplicate were filled in indicating the facsimile of the seal used against the relevant column. Charas was taken into possession vide seizure memo Ext.PW1/B alongwith gun and food articles etc. (iii) Ruqa Ext.PW1/D was sent for the registration of the case through PW3 Constable Yogesh Dhiman, which culminated into FIR Ext.PW7/E. (iv) Inspector/ SHO Shakuntla Sharma deposited the case property with PW6 MHC S.R. Sharma, who sent one sample parcel vide Road Certificate No.28/09 (Ext.PW6/B) through PW3 Constable Yogesh Dhiman for its analysis to the Forensic Science Laboratory, Junga. On its examination, the Chemical Examiner found it containing the resin contents of Cannabis to - 5 - the extent of 31.30 % weight-in-weight. Report is Ext.PX. (v) Appellant was arrested, he was informed of the grounds of arrest in writing. Later he was enlarged on bail and the food articles, the gun and the cartridges were released to the appellant on his application. (vi) A special report of arrest and seizure was sent to the officer superior within the statutory period. 3. The statements of witnesses were recorded, site plan was prepared and after completing the challan, it was presented in the Court for the trial of the appellant. He was accordingly charge-sheeted and tried. To prove its case prosecution examined its witnesses, but in between prosecution sought permission to send the remaining bulk Ext.P7 alongwith another sample parcel for test to the Chemical Examiner, Forensic Science Laboratory. On 20.3.2010, permission was accorded by a detailed order. Thus, the said case property was ordered to be produced before the Court and vide order dated 31.3.2010 after satisfying its identity and the conditions of the seals, learned trial Court sealed - 6 - both the parcels in a cloth marked S-1 affixing six seals in the presence of the parties, specimen of which was also taken on a separate piece of cloth. Seal after its use was handed over to Susheel Kumar Daftri against a proper receipt with a direction to produce when required. 4. The accused and the Public Prosecutor had no objection to hand over the parcels made in the Court to HC Raj Pal for depositing same in the Forensic Science Laboratory, Junga against proper receipt alongwith letter of request to the Director, FSL Junga to get the substance so sent examined from the Chemical Examiner regarding its nature and contents and submit report on or before 21.4.2010. After analysis, report was received on the date aforesaid alongwith bulk sent for its examination again after satisfying its identity in the Court on 6.5.2010. It was handed over to Constable Mahesh Kumar for its deposit in the Malkhana for safe custody. Thereafter remaining prosecution witnesses were examined. 5. The statement of the appellant under Section 313 of the Code of Criminal Procedure was recorded. He denied the circumstances which were found - 7 - attendant upon him. However, to question No.22, he explained that PW7 Inspector/ SHO Shakuntla Sharma asked him to supply information about the persons who were involved in the trade of Charas and on his inability to do so, she felt annoyed and was falsely implicated in the instant case. When called upon to enter into his defence, he did not lead any evidence in defence. 6. The defence so raised did not find favour with the learned trial Court, thus while relying upon the statements of the prosecution witnesses, the appellant was convicted and sentenced as aforesaid, hence the present appeal. 7. Shri B.B. Vaid, learned counsel for the appellant read out all the grounds of appeal from Para-1 to 26 contained approximately in 12 pages and at the end, submitted that the reports of the chemical analysis could not be connected by the prosecution with the recovery alleged to have been effected and further that both the reports of examination do not conforms to the definition of Charas provided under the Act, therefore, the judgment of conviction and sentence deserves to be set-aside. - 8 - 8. Contra, Shri P.M. Negi, learned Deputy Advocate General for the State supported the impugned judgment of conviction and sentence and further argued that the statements of the prosecution witnesses are worth inspiring confidence and the prosecution has been able to prove case against the appellant in accordance with law. The contradictions as pointed out by the learned counsel for the appellant contained in the grounds of appeal are minor in nature, which instead of doubting the prosecution case, rather inspire confidence as minor contradictions bound to appear since parrot like version cannot be accepted from a witness. He also submitted that the statement of the alleged hostile witness (PW2) has also supported the prosecution case in material particulars. He also ventilated that the sample from the recovered bulk was taken randomly which tested positive for Charas and the remaining bulk was also sent, for its examination to prove that even the remaining quantity was also the same, to clear ambiguity, if any and to arrive at truth. He also argued that the minor difference in the weight in the laboratory could be due to various reasons, one of which that it was weighed on the - 9 - electronic Scale in the Laboratory whereas on the spot only the conventional Scale was available by which it was weighed. He further argued that the link evidence is complete and the appellant could not probablise defence version. In nut-shell, he argued that the grounds, which are put-forth to upset the judgment of conviction and sentence are worthless and the impugned judgment is well reasoned and requires no interference. 9. I have given my thoughtful consideration to the respective contentions of the parties and have carefully, cautiously and meticulously examined every aspect of the case to arrive at truth, which must ultimately prevail. 10. PW7 Inspector/ SHO Shakuntla Sharma has corroborated the prosecution case in its totality. She stated that when the appellant was apprehended, he was anxious to leave the place. She asked him to get his bag checked by her, but the appellant pretended that it was only containing the food articles, whereas on checking of his bag, besides the food articles, it was found containing gun rod and also polythene envelope Ext.P5 which further contained white paper - 10 - envelope Ext.P6 containing 480 grams of Charas Ext.P7. She also stated that out of the recovered stuff, two samples of 25 grams each were taken, packed and wrapped by putting six seals of English letter “A” on each of the packets. Remaining bulk was also sealed with the same seal making a parcel Ext.P3. Sample parcels and the remaining bulk were identified by her during the trial as Exts.P1 and P2 respectively having been prepared by her on the spot. She also obtained the signatures of the appellant as well as witnesses present on the spot, on each of the parcels. She stated having taken sample of seal impression on a piece of cloth Ext.PY and also filled in NCB forms in triplicate, one of which is Ext.PW7/A. She also made the mention of the facsimile of the seal used and the case property was taken in possession vide seizure memo Ext.PW1/B. Seal after its use was handed over to PW2 Rajesh Sharma. Other food articles were also taken into possession vide memo Ext.PW1/C. She also stated having sent the Ruqa Ext.PW1/D through PW3 Constable Yogesh Dhiman for the registration of the case. Spot map Ext.PW7/B of the alleged recovery was also prepared showing the factual position. She also - 11 - stated that the statement Ext. PW7/C of PW2 Rajesh Sharma under Section 161 of the Code of Criminal Procedure was recorded by her and its portion ‘A’ to ‘A’ was correctly recorded by her. According to her, after arresting of the appellant, grounds of arrest were informed to him vide memo Ext. PW7/D. Thereafter case property was taken to the Police Station, prepared Memos Exts.PW1/B and C and deposited with PW6 MHC S. R. Sharma on the same day and prepared special report Ext.PW4/A and sent within statutory period to the Dy.S.P. (City). She was subjected to the lengthy cross-examination wherein she stated that the case property was weighed with the traditional Scale. Food articles were taken out of the bag by the appellant at her instance and the envelope of Charas was taken out by the appellant from the bag in the presence of PW1 SI Gulzari Lal and the other witnesses. She stated that she had seen the appellant for the first time on that day only. She did not have any knowledge that any other case of a similar nature was registered against the appellant earlier. She denied the suggestion that she wanted to extract information from the appellant about the persons indulging in the trade - 12 - of Charas and on his refusal to supply such information as he did not know them, she felt offended and booked him in a false case in connivance with PW2 Rajesh Sharma. She also expressed her ignorance whether PW2 Rajesh Sharma aforesaid was inimically disposed of against the appellant. She stated that she did not conduct personal search of the appellant before checking the bag. She denied that FIR number was written on the parcel prior to the receipt of the case file. Further on the request of learned counsel, during her examination, the sample parcel Ext.P2 was allowed to be opened, which contained four sticks in polythene wrapper of different sizes. 11. PW1 SI Gulzari Lal corroborated her version. He was also subjected to lengthy cross-examination. He stated that he did not know whether the appellant was earlier booked for commission of a similar offence where he was acquitted and that on suspicion, he was again apprehended. He also denied the suggestion that nothing was recovered from the possession of the appellant on the spot. 12. PW3 C.Yogesh Dhiman was also accompanying PW7 Inspector/ SHO Shakuntla Sharma - 13 - when the appellant was apprehended. He afforded the corroboration to the version of PW7 aforesaid. Though in cross-examination, he stated that at the time of preparation of memo, seal impression “A” was not handed over by the Inspector/ SHO Shakuntla Sharma to anybody and the same remained with her and also that the personal search was taken after the search of the bag, but these contradictions are not of a very serious nature in the light of other evidence, which go to the root of the case. 13. In a corollary of the events, PW6 MHC S. R. Sharma testified that on 20.2.2009, Inspector/ SHO Shakuntla Sharma deposited the case property sealed with seal impression “A” with him. He also identified all the three parcels Exts.P1 to P3 to be the same during the trial. He further stated that she also deposited one sample seal “A”, NCB forms in triplicate and other articles mentioned in memo Ext.PW1/C. He made its entry in the Malkhana register abstract of which is proved to be Ext.PW6/A. Further, on 21.2.2009, he handed over parcel Ext.P2 (S-2) alongwith NCB forms in triplicate, one sample of seal “A”, copy of FIR and police docket to PW3 C. Yogesh Dhiman vide RC - 14 - No.28/09 Ext.PW6/B with the direction to deposit the same in the FSL Junga and after depositing, he deposited the receipt obtained on the back of the RC aforesaid with him and he further testified that the case property remained in his custody intact and the same was not tampered with in any manner. He further explained that by mistake, the sample Mark S-1 was noted in the RC aforesaid, but in fact it was Mark S-2 (Ext.P2). In cross-examination, he stated that road certificate aforesaid was in his hand and the sample parcel which was sent for its analysis was checked before sending and the marks were readable. He denied that parcel Ext.P2 (S-2) was not sent for the test to the Laboratory. He also categorically denied that he tampered with the sample parcel in any manner. 14. PW3 Constable Yogesh Dhiman stated that it was the sample parcel Ext.P2, as stated by PW6 above, which was taken by him alongwith police docket vide RC aforesaid for its analysis and it was deposited in the Laboratory. 15. PW2 Shri Rajesh Sharma though declared hostile, but stood contradicted by his statement Mark-B (Ext.PW7/C) with respect to arranging of scales and - 15 - handing over of seal to him. However, he categorically stated that on 20.2.2009 at about 6 p.m., when he reached the shop, PW1 SI Gulzari Lal alongwith 4-5 constables came there, in the mean time, PW7 Inspector/ SHO Shakuntla Sharma happened to meet them in the front of his shops and apprehended the appellant. The appellant was asked about the gun licence, to which he was carrying and got his bag checked up. Police got his bag opened. It was containing food articles including mustard oil and the vegetables etc. and also a polythene envelope Ext.P5, which contained black coloured substance in the shape of sticks. He also identified that the recovered stuff is Ext.P7 on weightment it was 480 grams and categorically stated that these are the same sticks which were recovered from the bag of the appellant. He also stated having taken two samples of 25 grams each from the recovered stuff and were sealed. He also identified said sample parcels Exts.P1 and P2 during the trial and identified his signatures on the seizure memo. He stated that he did not remember whether any seal was handed over to him and due to the lapse of time, he has forgotten certain things. - 16 - 16. He also stated in cross-examination that the officials did not render to be searched by the appellant. When he reached the spot, police were checking the gun and licence of the appellant in front of his shop. He further stated that the appellant was carrying the bag on his back but stated that the seal was not handed over to him by the police and denied the version contrary to it when confronted with his statement recorded by the police, but did not explain why it was wrongly recorded. He also stated that he was not able to identify the substance recovered on the spot, but it is significant to note that during the trial, he identified Ext.P7 Charas to be same having been recovered from the bag of the appellant. Thus, his statement was in line with the prosecution version. He also stated that he was not having inimical relation with the appellant at any point of time nor he threatened him to set him right, therefore, his collusion with the police as alleged stands negated. He stated that during the course of the proceeding being conducted by the police he visited his shop for sometime and then returned to the place of proceeding. He denied that he did not notice what had happened on the spot. - 17 - Though he stated that he was seeing the stitching of the parcel from his shop itself which were stitched in his presence, but at times, he was also talking to the customers. He denied false implication of the appellant in the case. 17. Report of the analysis Ext.PX with respect to sample parcel clearly indicates that it was deposited by PW3 C. Yogesh Dhiman and received in the Laboratory on the same day i.e. on 21.2.2009. It is also stated that it contained six seals of seal impression “A” which were intact and tallied with the seal impression affixed on the NCB forms. The sample was kept in safe custody for its analysis and on the result of the examination the entire mass of the Exhibit was opined to be extract of Cannabis, containing resin 31.30 % weight-in-weight. 18. Another report of the remaining bulk and the second sample parcel which was ordered to be sent on the application of the prosecution as aforesaid is Ext.PY, was deposited by HC Raj Pal. The description of the parcel tallied with the seal of the District & Sessions Judge as indicated in the zimini orders dated 31.3.2010 and the seals were found intact. On analysis it was also - 18 - found having the resin contents of Cannabis as mentioned therein. 19. A perusal of the Road Certificate Ext.PW6/B indicates that the samples parcel alongwith NCB form and sample of seal were sent through PW3 C. Yogesh Dhiman and were received in the Laboratory on 21.2.2009 and the NCB forms indicates a reference with respect to sample of seal attached with the said form, which was certified to have been received in the Laboratory by the Chemical Examiner. 20. On the critical examination of the aforesaid evidence, I find that the enmity of the appellant with PW2 Rajesh Sharma as alleged is not at all proved. PW2 aforesaid though was declared hostile for a limited purpose but by and large he has supported the prosecution case. It has been held by the apex Court in Ashok Alias Dangra Jaiswal v. State of Madhya Pradesh [2011 5 SCC 123] that the seizure witnesses turning hostile may not be very significant by itself, as it is not an uncommon phenomenon in criminal trials, particularly in case relating to NDPS Act. However, in the instant case, the hostility of the said witness is not at all damaging to the prosecution as he has corroborated - 19 - the prosecution case in material particulars as stated above. The official witnesses have categorically stated about recovery, random sampling and sealing etc. by PW7 aforesaid as stated, its deposit with MHC on the same day, which was entered in the Malkhana register and on the very next day, one sample parcel of this case was sent for its analysis, which tested positive and this fact has been testified by MHC PW6 S. R. Sharma and the PW3 C. Yogesh Dhiman taking the sample. Thus, the official witnesses are duly corroborated by PW2 and other material on record. Even there is no principle of law that without corroboration of the independent witness, their testimonies cannot be relied upon. Presumption that person acts honestly applies as much in favour of police personnel as of other person as held by the Apex Court in Karamjit Singh vs. State (Delhi Administration) [2003 Cr.L.J. 2021] whereby it was also ruled as a matter of caution that that it is not proper judicial approach to distrust and suspect them without good grounds. 21. Thus, the contention of the learned counsel for the appellant that the hostility of PW2 Rajesh Sharma - 20 - has created a dent in the prosecution case is, worth rejecting. 22. Further PW7 Inspector/ SHO Shakuntla Sharma had no axe to grind to falsely implicate the appellant in the aforesaid case. She would not have carried the said contraband with her with a motive that when appellant would meet her it would be planted upon him. 23. Another contradiction on which learned counsel for the appellant has based his argument is with respect to obtaining of weights and Scales from the shop of PW2 Rajesh Sharma is very insignificant as he stated that it was weighed in his presence and it turned out to be 480 grams as aforesaid, therefore, no benefit can be given to the appellant on this minor contradiction. 24. Further the contention that there appears contradiction with respect to examining the recovered stuff by PW7 Inspector Shakuntla Sharma by taste whereas this fact has not been corroborated by PW2 Rajesh Sharma, is also ignorable. It does not make any difference whether it was tasted by the Investigating Officer or not but the stuff so recovered was sent for its - 21 - examination and it turned out to be the Charas is enough to prove the case against the appellant. 25. Other contradictions as pointed out in the grounds of appeal are not very material which could suspect the truthfulness of the prosecution case. It is also ventilated that the challan in the Court was presented with respect of 25 grams of Charas only, thus it was triable by the Chief Judicial Magistrate and not by the learned Sessions Judge, is also devoid of any merit, because it is clearly mentioned in the police report submitted by the police under Section 173 of the Code of Criminal Procedure that the recovered stuff was 480 grams, so deposed by the prosecution