IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr.A. No . 269 of 2005 Reserved on: 20th June, 2008 Decided on : 27 th June, 2008 Eim Singh. ……. 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 Yes. For the Appellant : Mr. Vishal Panwar, Advocate. For the Respondent : Mr. P.K. Sharma, Addl. Advocate General with Mr. P.M. Negi, Dy. Advocate General. Surinder Singh,J. The appellant was tried and convicted of the offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, in short the Act; and sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1,00,000/- in default of payment of fine, he was further ordered to undergo the rigorous imprisonment for a period of two years, which has been challenged by him in this appeal on law and facts. Precisely, the appellant was put on trial on the allegations that on 25.4.2004, the police party headed by PW11 S.I. Prem Chand had laid a Naqa, on the road at the place known as Bhukdu. Around 1.15 p.m., the appellant while walking on the road with a rexin bag of blue and red colour noticed the police party and tried to escape but he was overpowered. The police suspected contraband in his possession. PW1 Pawan Kumar and PW2 Sunny, who were standing nearby, were associated as independent 1 Whether the reporters of Local Papers may be allowed to see the judgment ?Yes - 2 - witnesses. S.I. Prem Chand served the notice Ex.PW1/A upon the appellant to satisfy the provisions of Section 50 of the Act. The appellant gave his consent in writing for his search to the police party. SI Prem Chand conducted the search of the rexin bag of the appellant and recovered two polythene envelopes, one of blue colour and another of black colour. The said envelopes were containing Charas in the shape of balls and sticks. On weighing, it came out to be 4 kg. 700 grams. The said police officer took three samples from the recovered quantity weighing 25 grams each for chemical analysis and were sealed with seal, impression `A’. The remaining bulk was also sealed with the same seal in the presence of witnesses aforesaid. The sample of seal was taken separately. The case property was taken into possession vide seizure memo Ex.PA. Ruqa Ex.PW11/A was sent to police station Chowari through constable PW3 Daulat Ram, for the registration of the case, on the basis of which formal FIR Ex.PW12/B was registered. SI Prem Chand had also filled up the NCB form Ex.PW11/B and prepared a list of inventory Ex.PW11/C in the presence of independent witnesses. PW12 ASI Mehar Singh, was deputed from police station Chowari, he reached the spot, the Additional SI/SHO Prem Chand handed over the case property as per the inventory list alongwith the accused for further investigation. He prepared the site plan Ex.PW12/C and recorded the statement of the witnesses. Accused was arrested. The grounds of arrest were informed to him. ASI Mehar Singh resealed the case property with his own seal impression `M’ and to this effect prepared memo Ex.PW6/A. On reaching the police station, he deposited the case property in the Malkhana alongwith the NCB form to PW9 MHC Deepak Kumar, which was entered by him in the Malkhana register maintained in the Police Station. On 27.4.2004, one sample out of - 3 - the three samples was sent to the Chemical Testing Laboratory, Kandaghat, alongwith NCB form vide RC 20/11 through constable Manjeet Singh. On his return, he deposited RC alongwith receipt of CTL Kandaghat with MHC Deepak Kumar. The special report Ex.PW10/B was sent within time to S.P. Chamba for information by ASI Mehar Singh. On the receipt of the report Ex.PW11/B from CTL Kandaghat, which confirmed that the sample so sent was that of Charas, presented the challan in the court for the trial of the appellant. The appellant was charge-sheeted under the aforesaid section. He pleaded not guilty and claimed trial. To prove its case, the prosecution examined its witnesses and the appellant was also examined under Section 313 of the Criminal Procedure Code. The appellant raised the defence that it was a planted case and nothing was recovered from him. He was called upon to enter into his defence but no defence was led. The learned trial court after appreciating the evidence on record and hearing the parties convicted and sentenced the appellant, as aforesaid. We have heard the learned counsel for the parties. Sh. Vishal Panwar, the learned counsel for appellant has forcefully argued that the independent witnesses have not supported the case of the prosecution and the statements, of the official witnesses are contradictory which render the prosecution case doubtful. He also argued that the link evidence was not complete and there was a cutting in the Malkhana register with respect to the deposit and sending of the sample for chemical examination, which raises a doubt on the prosecution case and the learned trial court has wrongly ignored the material contradictions which culminated into the wrong findings of guilt of the appellant. - 4 - Shri P.K. Sharma, learned Additional Advocate General while supporting the impugned judgment of conviction and sentence has submitted that the independent witnesses though turned hostile to the prosecution but they had shown sympathy to the appellant being a local person. However, the official witnesses have fully supported the case of the prosecution. Minor contradictions, if any, appearing in their statements do not shatter the prosecution case nor raises any doubt in the authenticity of the prosecution case. With a view to appreciate the contentions of the learned counsel for the appellant, we summoned the Malkhana Register of Police Station Chowari, with respect to the relevant date of this case and ordered to place on record attested photocopy of relevant entry, which was marked Ex.PW9/ A. To appreciate the rival contentions, we have carefully reappraised the evidence on record to find out whether the findings of the guilt arrived at by the learned trial court are legally and factually correct. PW11 SI/ Additional SHO Prem Chand has categorically stated that on 25.4.2004, he alongwith PW7 constables Ramesh Chand, PW4 Daulat Ram and Amar Singh had laid a naqa at the place known as Bukdu. At about 1.15 p.m., the appellant came from Bhukdu side. On noticing the police, he tried to escape. At that time, PW1 Pawan Kumar and PW2 Sunny were standing nearby on the roadside, besides the hand pump. They were called to join the investigation. The appellant was over- powered. He was found carrying a rexin-bag Ex.P1. The police entertained doubt that the appellant might be in possession of the contraband. Then he served the notice Ex.PW11/A to the appellant apprising him of his right to exercise his option to be searched by the police party or before the - 5 - Gazetted Officer or the Magistrate. Appellant received the notice and gave his consent in writing thereon whereby he consented to be searched by the police party. ASI Prem Chand conducted his search and recovered the charas from the bag which he was carrying. Daulat Ram Constable was sent to arrange the Scales and weights. He brought it from the shop of PW3 Dhani Ram to the spot. The recovered quantity was weighed which came out to be 4 kg. and 700 grams. He separated three samples of 25 grams each and sealed each of them with seal impression ‘A’. The remaining bulk was also sealed with the same seal in the presence of the independent witnesses. He identified the remaining recovered bulk Ex.P2 and the two samples Ex.P3 and P4, marked as Ex.P5 and P6. These packets also contained the signatures of PW1 Pawan and PW2 Sunny. The specimen impression of seal was taken into a piece of cloth and thereafter the case property was taken into possession vide memo Ex.PA. Its copy was given to the appellant. He prepared the ruqa and sent Constable Daulat Ram to the Police-Station Chowari for the registration of the case. He had also filled-in the NCB form Ex.PW11/B and prepared the list of inventory Ex.PW11/C in the presence of the witnesses aforesaid. He also sent the intimation in writing Ex.PW10/A through Constable Ramesh Chand to S.P. Office Chamba. ASI Mehar Singh (PW11) was deputed from Police Station Chowari for further investigation of the case. On reaching the spot, he handed over the case property alongwith the case vide inventory list and NCB form to ASI Mehar Singh and the statements Ex.PC and PD of the independent witnesses as stated by them. Thus he has fully corroborated the case of the prosecution. In his cross examination, he stated that neither he had prior secret information nor he had mentioned in the notice Ex.PW11/A that the - 6 - appellant had a legal right to be searched before the Gazetted officer or the Magistrate. He also did not mention in the papers prepared on the spot regarding the recovery of charas, but he only mentioned that it was some contraband as he was not certain whether the material recovered was charas or something else. He had confirmed the fact of resealing the case property by ASI Mehar Singh in his presence on the spot. PW4 Constable Daulat Ram has deposed that independent witnesses Pawan Kumar and Sunny were present on the spot at the time of recovery of the charas from the rexin bag of the appellant. He had arranged for the scales and weights. The recovered quantity was weighed on the spot and three samples were drawn and sealed as aforesaid. He identified the sample of seal, the remaining two samples and the case property during the trial of the case and he also admitted having taken a ruqa for the registration of the case to police station Chowari. In his cross-examination, he was confronted with his statement Ex.DA recorded under Section 161 Cr.P.C. wherein the fact of two polythene envelopes found in rexin bag was not mentioned. It is denied by him that no charas was recovered from the appellant. PW 7 Ramesh Kumar has stated that he was given a copy of ruqa on the spot by SI Prem Chand, which was handed over by him to the Reader to Additional S.P. Chamba against a receipt and he was not cross- examined on this point. PW12 SI Mehar Singh deposed that on the receipt of ruqa Ex.PW11/A he made his endorsement Ex.PW12/A in the police station. The FIR Ex.PW12/B was recorded and thereafter case file was prepared and he rushed to the spot. PW11 SI Prem Chand handed over the inventory list and accused to him alongwith the case property which was - 7 - resealed by him with his seal impression `M’. He recorded the statements of the witnesses, prepared the arrest memo Ex.PW12/E, grounds of arrest were prepared and informed to the appellant. On return to the police station, case property was deposited with PW9 MHC Deepak Kumar alongwith the sample of seal. In cross-examination, nothing material could be extracted from him. PW9 MHC Deepak Kumar has stated having received the case property and sample of seal alongwith the NCB form, which was deposited by ASI Mehar Singh. Its entry was made in the Malkhana register. On 27.4.2004, one sample alongwith NCB form was sent to CTL Kandaghat vide RC No.20/21 through PW5 Constable Manjeet Singh for analysis. He produced the original Malkhana register in the court and he further stated that so long as the case property remained with him it was not tampered. In the cross-examination, he has stated that there was no entry in the Malkhana register with respect to the NCB form, since it was not a case property but it was only a document. He admitted that there was some over-writing in the Malkhana register regarding the name of the depositor. It is denied by him that after cutting the name of Prem Chand it was written as Mehar Singh. He further stated that NCB form was further entered in the docket while sending it to CTL Kandaghat. Though we noticed some other writing regarding the name of the depositor but the name appears to have been corrected as Mehar Singh in place of Prem Chand, which does not render the prosecution case doubtful in any manner. The dispatch of sample through C. Manjeet Singh also finds mentioned therein. PW5 Constable Manjeet Singh has admitted having taken the sample of this case on 27.4.2004 to CTL Kandaghat vide RC No.21/2004 alongwith one envelope and specimen seal, which was deposited by him in - 8 - the Laboratory on 29.4.2004. He handed over the receipt on his return to MHC and no one tampered with the case property till its custody. The report of the analysis made on the NCB form also reveals that the case property was received on 29.4.2004 through Constable Manjeet singh which was duly sealed. There is also a reference that the sample bore the seal impression ‘A’ and two impressions of ‘M’ and the seal was also attached. PW3 Dhani Ram from whose shop the weights and scales were brought by Constable Daulat Ram did not support the prosecution case. According to him he was not present in his shop on that day, however, his son was present, therefore, he did not know if the scales were taken by PW3 from his son. Though the independent witnesses have not supported the prosecution case, but they have admitted their signatures on the recovery memo and the case property also bear their signatures, therefore, it cannot be said that they were not present on the spot and nothing was recovered in their presence. On the contrary, on the critical examination of the evidence on record, we find that there is no material discrepancy in the statements of the official witnesses. The recovery of the contraband stands absolutely proved from the possession of the appellant. The contention of the learned counsel for the appellant that independent witnesses have not supported the case and the version given by the official witnesses cannot be acted upon for want of corroboration, is devoid of any merit. The evidence of search and seizure made by the police officials will not become vitiated solely for want of its corroboration from the independent witnesses. There is no law that the version of the police officials, if inspires confidence cannot be relied upon to sustain the conviction of the accused. - 9 - Since the recovery of the charas was made from the appellant from the bag Ex.P1 which he was carrying, the provisions of Section 50 of the Act are not attracted. In our opinion, the statements of the official witnesses are cogent, reliable and trustworthy, which can be acted upon. The link evidence is complete and it stands proved that the recovered stuff from the appellant was that of charas. Thus on the close scrutiny of the evidence aforesaid, we do not find any discrepancy or any illegality in the impugned judgment of conviction and sentence passed by the learned trial court, therefore, the appeal filed by the appellant sans merit. No other points urged or pressed before us. In result, the appeal against the conviction and sentence filed by the appellant is dismissed. Send down the records. (Surjit Singh), Judge. (Surinder Singh), Judge. June 27th,2008 (Pds)