HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A.No.: 215 of 2006 Reserved on: 25.8.2008 Decided on: 5.9.2008. Bir Singh ………Appellant. Versus State of Himachal Pradesh ………Respondent. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For appellant: Mr.M.S. Guleria, Advocate. For respondent: Mr.R.M. Bisht and Mr.Rajesh Mandhotra, Deputy Advocate Generals. Per V.K. Ahuja, J: This is an appeal filed by the appellant under Section 374 of the Cr.P.C. read with Section 36-B of the NDPS Act against the judgment of the learned Special Judge (Additional Sessions Judge), Mandi, dated 14.7.2006, vide which the appellant was held guilty under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, here-in-after referred to as the NDPS Act, and was sentenced to undergo rigorous imprisonment for a period of 12 years and to pay a fine of Rs.2.00 lacs. In default of payment of fine, the appellant was to further undergo rigorous imprisonment for one year. ______________________ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - Briefly stated the facts of the case are that on 30.10.2004, PW-8 ASI Yog Raj, Incharge of CIA Staff, Mandi, was going towards Kullu at about 6 a.m. on National Highway No.21 alongwith H.C. Ram Lal, PW-1 Constable Sant Ram, PW-4 Constable Vidya Sagar and other Constables. One person came from Kullu side carrying one boru on his left shoulder, who tried to run away on seeing the police party. He was apprehended by PW-8 ASI Yog Raj with the help of other police officials. The bag which he was carrying was checked by PW-8 ASI Yog Raj, Incharge of the raiding party and on opening the same, another brown bag was recovered which contained charas in the shape of sticks and of chapatis. On weighment, it was found containing 4.5 kg. charas. Out of the recovered charas, two specimens of 25 grams each were taken and the specimens and the remaining charas were separately sealed in parcels. After complying with the procedure, the recoveries were effected and the case property was deposited with the MHC. The said sample was sent to the office of the Chemical Examiner and on receipt of the report of the Chemical Examiner and on completion of the investigation, the challan was filed as against the appellant, who was tried by the learned trial Court under Section 20 of the NDPS Act leading to his conviction, as detailed above. We have heard the learned counsel for the parties and have gone through the record of the case. The submissions made by the learned counsel for the appellant were that no independent witnesses were associated by the raiding party, though they had gone on patrolling. It was also submitted that there are contradictions in the statements of the prosecution witnesses, which makes the prosecution story doubtful and the same cannot be relied upon. The contradictions referred to by - 3 - the learned counsel for the appellant, during the course of arguments, shall be referred below, in detail. On the other hand, the submissions made by the learned Deputy Advocate General are that there are no material contradictions and the contradictions are not in regard to the recovery but are on minor points, which were not relevant, and the statements of the official witnesses inspire confidence and as such, the findings of the learned trial Court holding the appellant guilty do not call for an interference by this Court. On appraisal of the evidence led by the prosecution, it is clear that the Incharge of the raiding party was PW-8, ASI Yog Raj, who was going on National Highway at about 6.00 a.m. alongwith other police constables named above. He stated that the accused was apprehended suddenly carrying a bag, who tried to run away and was nabbed with the assistance of police officials. On opening, another bag was found in the bag containing sticks and charas in chapati shape, which, on weighment, was found to be 4.5 kg. Two specimens of 25 grams each of the charas were taken and the remaining charas was sealed, alongwith bag. He filled the NCB form Ext.PW-8/A and took specimen of the seal on separate cloth. He took into possession the charas vide recovery memo Ext.PW-1/A, which was also signed by two witnesses, the police constables. Copy of the same was supplied to the accused. He prepared the Ruka Ext.PW-8/C and sent the same to the police station through Constable Vidya Sagar. He prepared the spot map Ext.PW-8/D and also conveyed grounds of arrest Ext.PW-1/C to the accused. He effected personal search of the accused vide Memo Ext.PW-1/D. He also stated that he conducted the search of the house of the accused nearby in presence of witnesses and prepared Memo Ext.PW-4/A to this effect that - 4 - nothing was recovered from the house. He prepared special report Ext.PW-6/A and sent the same to the Superior Officer through Constable Sant Ram. He has identified the parcel Ext.P-2, plastic bag Ext.P-3, ribbon Ext.P-4, jute bag Ext.P-5 and remaining charas and sample parcels Ext.P-6 and Ext.P-8. He stated that he deposited the case property with the SHO alongwith NCB form. The statement of PW-8 Yog Raj, ASI and Incharge of the raiding party, has been duly corroborated by the statement of PW-1 Sant Ram, Constable, and PW-4 Constable Vidya Sagar, who are the members of the raiding party and are witnesses to the recovery memo. They have corroborated the statement of PW- 8 ASI Yog Raj on all material particulars. Apart from this, the prosecution had also examined PW-2 Baldev Singh, HHC, Incharge of the Malkhana, who stated that on that day the Inspector/SHO, N.K. Sharma deposited three parcels duly sealed alongwith NCB form and he entered the case property in the Malkhana register. He sent one sample parcel in this case to Chemical Laboratory, Kandaghat, through Constable Sanjay Kumar, who gave receipt on return from the Laboratory. He stated that the case property remained safe so far it remained in his possession. He also proved the copy of RC Ext.PW-2/B, vide which the sample parcel was sent for analysis. The said Sanjay Kumar has been examined as PW-3, who corroborated this statement. PW-5 ASI Gurdass Ram had received the memo from ASI Yog Raj through Constable Vidya Sagar on which he recorded the FIR Ext.PW-5/A and also made endorsement on the memo. - 5 - PW-6 Head Constable Man Singh was posted as Reader to S.P., Mandi, who has stated that on 30.10.2004, at 4.10 p.m., Krishan Chand, Dy.S.P., handed over to him the special report Ext.PW-6/A. PW-7 HC Gulab Singh is a formal witness, who had recorded the statements of some witnesses. PW-9 N.K. Sharma, the then SHO, had received the case property from the Incharge Malkhana alongwith NCB form and gave the property to the MHC after sealing it with his own seal. He also identified the parcel and has tendered in evidence the report of the Chemical Examiner Ext.PW-9/C, which proves that the contents of the sample were found to be that of charas. PW-10 Krishan Chand, Dy.S.P., has stated that he received the special report Ext.PW-6/A and he gave it to his Reader after putting his signatures on it. Coming to the first plea raised by the learned counsel for the appellant that no independent witnesses were associated by the Investigating Officer and, therefore, the statements of the police officials, in the absence of independent corroboration, cannot be relied upon. A perusal of the statement of PW-8 ASI Yog Raj clearly shows that the place of recovery was a lonely place and no witness was available at that time. In his cross examination, it had come up that the locality and shops nearby were at a distance of about 200 metres. His statement clearly shows that they had gone on patrolling. The time of recovery was 6.00 a.m. and the site plan Ext.PW-8/O proved by him in his evidence does not prove that there are any houses or shops nearby from which persons could have been associated. Similarly, there is nothing in the statement of PW-1 Sant Ram, Constable, and PW-4 Vidya Sagar, Constable, which could suggests that persons were available nearby or could have been associated. It was a case of - 6 - chance recovery and the learned trial Court had also referred to the evidence in this regard while considering the plea of non-joining of independent witnesses and after making a reference to some decisions, it was rightly held that the statements of the official witnesses cannot be disbelieved simply because no independent witnesses were associated. Keeping in view the fact that the recovery was effected in the early hours of morning and there were no persons available nearby, therefore, this contention putforth by the learned counsel for the appellant that no independent witnesses were associated, though available, cannot be accepted as correct. Coming to the contradictions referred to in the testimony of independent witnesses, the Investigating Officer PW-8 ASI Yog Raj has admitted that the house of the accused was at some distance, which was also searched. He is corroborated on this point by PW-4 Vidya Sagar, Constable, but PW-1 Sant Ram has denied if the Investigating Officer searched the house of the accused on that day, though he remained at the spot with the raiding party. The second contradiction pointed out was that during cross examination, PW-8 ASI Yog Raj has stated that he has shown the path Ext.PW-8/C which is opposite to the well, which is not correct since the path leads to the village at a distance of about 200 metres from the path shown by him. However, a perusal of the statements of these three witnesses shows that they all have stated that the accused was apprehended at some distance from the well towards Kullu side. It was sought to be argued by the learned counsel for the appellant that as to why the Investigating Officer had shown the path opposite to the well, which, as per his own admission, was not correct. It was the perception of the Investigating Officer at the spot from which he prepared the site plan but in his cross - 7 - examination he has admitted that it was not exactly showing the position at the spot as it was there. The contradiction referred to is not very material and the Investigating Officer had no intention to depict the picture wrongly and he had not tried to show that there were no houses nereby, though they existed at the spot. In case, he had tried to show that there were no houses at the spot, though these existed near the place of recovery, then the statement of the Investigating Officer could have been doubted but this fact is not sufficient to hold that his statement does not inspire confidence. In regard to the first contradiction if the house was searched or not, the recovery was effected on 30.10.2004 while the statements of these witnesses were recorded after almost one year and by passage of time, this much contradiction does not affect the merits of the case since there is no contradiction in regard to the time of recovery, place of recovery or quantity of charas recovered or the persons present at the spot. The contradiction is in regard to only minor fact about the house of the accused having been searched or not subsequently but nothing had been recovered and, therefore, that part of the contradiction is not material. To substantiate his plea that since no independent witnesses were associated and there are contradictions, the statements of the Investigating Officer and other police officials should not be relied upon, the learned counsel for the appellant had placed reliance upon the decision in Ram Saran vs. State of Haryana, 2006(4) Criminal Court Cases 570 (P&H). In that case, no independent witness had been joined. It was held that if no public witness was available or unwilling to join, then the Magistrate or a gazetted officer could have been associated. However, in further discussion it was held that once the - 8 - recovery was to be effected from a bag, it was not necessary that the search should be conducted in presence of a Magistrate or a gazetted officer, which is as per the law laid down by the Apex Court. On facts, the said judgment does not apply to the present case because in the present case no independent witnesses were available or could have been associated and there are no material contradictions in the statements of the prosecution witnesses, which have been thoroughly considered by us and we find no ground to disagree with the findings recorded by the learned trial Court holding the appellant guilty under Section 20 of the NDPS Act. Coming to the sentence imposed by the learned trial Court, no arguments were advanced on this point. Since large quantity of charas i.e. 4.5 kg. was recovered from the possession of the appellant, which is more than the commercial quantity of 1 kg., therefore, the sentence imposed by the learned trial Court cannot be said to be excessive calling for an interference by this Court. We accordingly hold that there is no merit in the appeal filed by the appellant, which is dismissed accordingly. (Deepak Gupta), Judge. September 5, 2008. (V.K. Ahuja), (TILAK) Judge. - 9 - HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No.: 215 of 2006 Judgment for consideration please (V.K. Ahuja), J. Hon’ble Mr.Justice Deepak Gupta, J: I agree/do not agree (Deepak Gupta), J. Hon’ble Mr.Justice V.K. Ahuja, J. List for pronouncement of Judgment on September , 2008 (V.K. Ahuja), J. Court Secretary