IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Criminal Appeal No. 163 of 2010 Judgment reserved on: 13.5.2011 Date of decision: 31.5.2011. Bali Ram …Appellant. Versus State of Himachal Pradesh ..Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting? No For the Appellant : Mr. Anoop Chitkara, Advocate. For the Respondent : Mr. J.S.Rana, Assistant Advocate General. __________________________________________________________ Kuldip Singh, Judge The convict has come in appeal against judgment dated 11.5.2010/5.6.2010 in Sessions Trial No. 30 of 2009 whereby learned Special Judge, Chamba has sentenced the appellant to undergo rigorous imprisonment for five years and to pay a fine of ` 50,000/- and in default of payment of fine to further undergo imprisonment for one year under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘Act’). 2. The prosecution case, in brief, is that on 5.3.2009 ______________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 police party consisting of H.C. Kartar Singh, H.C. Roop Singh, C.Mohammad Aslam and C. Mazid Mohammad were patrolling in private vehicle and reached Bathri Bazar, they found one person in rain shelter at Bus stop carrying cloth bag on his right shoulder. On seeing the police party, he started proceeding towards the path adjacent to rain shelter. He was over-powered by the police party with the help of Naresh Gupta and Ashwani Kumar. He disclosed his name Bali Ram. 3. On suspicion, he was informed in writing that he was to be searched along with bag he was carrying on his shoulder. He was given option to be searched in the presence of Magistrate or Gazetted Officer, he gave his consent to be searched by the police and accordingly a memo to this effect was prepared. 4. H.C. Kartar Singh gave his own personal search alongwith police party and the witnesses to Bali Ram. Thereafter, personal search of Bali Ram and the bag which he was carrying on his right shoulder was conducted, from search of the bag another polythene envelope was found containing round and stick shape black colour solid material which on smelling found to be Charas. The recovered Charas was weighed and on weightment it was found 2 Kgs with polythene, two samples of 25 grams each for chemical examination were taken separately from the bulk quantity and sealed. Remaining 1 Kg 950 grams Charas was sealed separately. The samples and bulk quantity were sealed with seal impression ‘K’, NCB form was filled in. The seal impression was taken separately on a piece of cloth and the seal after use was 3 handed over to Ashwani Kumar. The recovered Charas was taken into possession vide separate memo. 5. The rukka was sent through C.Mazid Mohammad for registration of the case, a copy of rukka was also sent to Superintendent of Police through C. Mohammad Aslam. On the basis of rukka, FIR No. 35 of 2009 was registered on 5.3.2009 at Police Station, Dalhousie. The file was given to Mazid Mohammad, who handed over the file to H.C. Kartar Singh. Bali Ram was arrested. H.C.Kartar Singh handed over the case property to Inspector/SHO which was re-sealed and deposited in the Malkhana. The sample was sent for chemical examination through C. Hem Raj on 6.3.2009 at Junga. The report from the Chemical Examiner was obtained. On completion of investigation, challan was submitted in the Court. 6. The appellant was charged for commission of offence punishable under Section 20 of the Act. He pleaded not guilty and claimed trial. The prosecution has examined nine witnesses and produced some documents to prove the charge. The statement of appellant was recorded under Section 313 Cr.P.C. He denied the prosecution case. The learned Special Judge, convicted the appellant on 11.5.2010 and sentenced him on 5.6.2010 as noticed above, hence appeal. 7. I have heard the learned counsel for the appellant and have also gone through the record. It has been submitted on behalf of the appellant that prosecution story is highly improbable. It has not been explained how right from the very beginning in the 4 documents Section 20 of the Act has been mentioned even though, as per the prosecution, it is not a case of prior information. The documents indicating Section 20 right from the very beginning have been concocted and fabricated. The investigation conducted is suspicious. The search according to prosecution was conducted at 6.30 P.M., rukka was prepared at 7.30 P.M. In about one hour, it is not possible to complete the formalities. PW-1 Mazid Mohammad has stated that rukka was handed over to him at 7.30 P.M. 8. The prosecution case is contradictory regarding the proceedings conducted after return of case file to H.C. Kartar Singh by C. Majid Mohd. In the arrest memo, there is cutting showing the time of arrest. There is contradiction when the case property was deposited by SHO to MHC. The signatures of appellant on some documents do not match with the other documents. The link evidence is vague, the sample sent for testing to FSL, Junga did not pertain to the sample taken out from the bulk in the present case. The sentence imposed is excessive. The appellant is not involved in the trade of illicit drug trafficking. The appellant has received notice of recovery from the bank which shows that appellant is engaged in agriculture and not in illicit trade of Charas. 9. Mr. J.S.Rana, learned Assistant Advocate General has opposed the submissions made on behalf of the appellant. He has submitted that the occurrence took place on 5.3.2009. The prosecution evidence started on 2.12.2009. It is not humanly possible to repeat statements with mathematical precision after nine months. In normal course, some variations are natural, parrot 5 like version from prosecution witnesses is not expected. The variations in the statements of prosecution witnesses which do not go to the root of the prosecution case indicate truthfulness in the prosecution case rather then that the prosecution case is false. It has been submitted that the learned Special Judge has very carefully considered the material on record. The prosecution has proved the case beyond reasonable doubt. There is no merit in the appeal. 10. PW-1 HHC Mazid Mohammad has stated that on 5.3.2009 he alongwith H.C. Kartar Singh, C. Roop Singh and C. Mohd. Aslam was going towards Bathri in private vehicle on routine patrolling, at about 6.30 p.m. they reached Bathri. One person was seen standing adjacent to rain shelter at Bathri, who on seeing the police party tried to run away. Naresh Kumar and Ashwani Kumar independent witnesses were also standing at that place. The person was over powered, who was having a bag hanging on his right shoulder. On inquiry, he disclosed his name Bali Ram. 11. PW-1 further stated that on suspicion H.C. Kartar Singh told him that his search is to be conducted and whether he wanted to be searched before a Magistrate or a Gazetted Officer or police. On this, appellant consented to be searched by the police party. A memo was prepared. H.C. Kartar Singh gave his personal search to Bali Ram and independent witnesses but nothing incriminating was found in his possession and a memo to this effect was prepared. 6 12. PW-1 continued that the bag in possession of the appellant was searched and was found containing a polythene bag which on opening was found containing Charas in the shape of sticks and balls. On weightment, the appellant was found carrying 2 Kgs. Charas, two samples 25 grams each were taken out from the bulk quantity and were sealed with seal impression ‘K’. The remaining Charas was put in the same bag and sealed in cloth bag with the same seal impression. The seal impression was also taken separately on a piece of cloth. NCB form was filled in on the spot. The recovered Charas and sample parcels were taken into possession. The seal after use was handed over to Ashwani Kumar witness. H.C. Kartar Singh prepared a rukka and handed over the same to the witness for being taken to Police Station, Dalhousie for registration of the case. 13. PW-1 has also stated that he handed over the rukka to MHC Police Station, Dalhousie and after registration of FIR, brought back the case file and handed over to H.C.Kartar Singh. He identified the accused from whom Charas was recovered. He identified bulk parcel Ex.P-1, sample parcels Ex.P-2 and Ex.P-3, specimen seal impression Ex.P-4. The witness was cross- examined how much time was taken for completing various steps. He has stated that he does not remember when rukka was prepared, rukka was handed over to him at 10.30 p.m. He also stated that he could not tell the time when he returned from Police Station alongwith the case file. He has stated that no proceedings 7 were drawn after he handed over the case file to Investigating Officer at the spot. 14. PW-1 has also stated that the proceedings were drawn near the rain shelter at Bathri. The proceedings were completed in the street light which was available at the spot. He denied that he was not present at the spot so also H.C. Roop Singh. He denied that no Charas was recovered from the appellant. He also denied that witnesses Ashwani Kumar and Naresh Gupta were not present at the spot. 15. PW-2 Naresh Gupta has stated that on 5.3.2009 at about 4.30 p.m. he was present at his shop at Bathri and near the rain shelter, Bali Ram was nabbed by the police. The accused was carrying a bag. The bag was found containing something black in the shape of balls and sticks. The Charas Ex.P-7 is the same. He did not support the prosecution and was declared hostile. He was cross-examined by the Prosecutor. He admitted that parcels Ex.P-1 to P-3 and seal impression Ex.P-4 bear his signatures. He identified the appellant in the Court who was apprehended by the police. In answer to Court question, he has stated that he retired as Incharge Employment Exchange, Chowari. He did not assign any specific reason why he put his signatures on seizure memo. 16. PW-3 C. Hem Raj has stated that on 5.3.2009 HC Kartar Singh had produced the case property before SHO Sanjeev Bhatia which was sealed with seal ‘K’ along with specimen seal impression and NCB form. The case property was resealed by the SHO with seal impression ‘X’ and a memo in this regard Ex.PW-3/A 8 was prepared which bears his signatures. The seal was handed over to him. 17. PW-3 continued that on 6.3.2009 MHC Bhajan Singh handed over one sealed parcel sealed with seal impressions ‘K’ and ‘X’ along with NCB form, sample seals ‘K’ and ‘X’ for being taken to FSL, Junga vide R/C No. 36/09 which he deposited at FSL, Junga on 7.3.2009. The R/C on his return was deposited with MHC. He was cross-examined and in cross-examination, he has stated that he has lost the seal. But in the remaining cross- examination, nothing was extracted which can be utilized by the defence. 18. PW-4 H.C. Bhajan Singh has stated that on 5.3.2009 SHO Sanjeev Bhatia deposited with him two sample parcels sealed with seals ‘K’ and ‘X’ along with NCB form and sample seals of seals impression ‘K’ and ‘X’. On 6.3.2009 he had sent one sample parcel alongwith sample seals ‘K’ and ‘X’ and NCB form vide R/C No. 36/09 dated 6.3.2009 through PW-3 Hem Raj for being taken to FSL, Junga. After depositing the articles at FSL, Junga, he handed over R/C to him on return. The copy of R/C is Ex.PW-4/A and copy of Malkhana Register is Ex.PW-4/B. In cross-examination, he has stated that the entry regarding the receipt of NCB form has not been mentioned in the Malkhana Register. In further cross- examination, defence has extracted nothing which can be of any use to the defence. 19. PW-5 HHC Hari Sharan has stated that on 7.3.2009 SHO Sanjeev Bhatia handed over to him one sealed envelope 9 said to contain special report to be taken to the office of S.P., Chamba which was handed over to C. Om Parkash, Reader to S.P., Chamba on the same date. PW-6 HHC Pritam Chand has proved copy of rapat No.9 dated 5.3.2009 of Police Post, Banikhet Ex.PW-6/A. 20. PW-7 Inspector/SHO Sanjeev Bhatia has stated that on 5.3.2009 HC Kartar Singh had sent one rukka through C. Mazid Mohammad for registration of the case and thereupon he recorded FIR Ex.PW-7/A and made endorsement Ex.PW-7/B on rukka. After registration of the case, the case file through the said Constable was sent to the spot. On 5.3.2009 H.C. Kartar Singh produced case property comprising of one bigger parcel, two sample parcels, three sample seals of seal impression ‘K’ and NCB form. He re-sealed the bigger parcel and the sample parcels with seal impression ‘X’. The seal impression of seal ‘X’ was taken on a separate piece of cloth. The relevant columns of NCB form were filled in. The impression of seal ‘X’ was also affixed on the NCB form. Reseal memo to this effect was prepared which is Ex.PW-3/A. The seal after use was handed over to C. Hem Raj. NCB form is Ex.PW-7/C which bears his signatures. The case property was deposited with MHC Bhajan Singh including NCB form and seal impressions ‘K’ and ‘X’. The special report Ex.PW-7/D was sent to S.P. Chamba through HHC Hari Sharan. On receipt of report of Chemical Examiner Ex.PW-7/E, challan was prepared. He has proved specimen of the seal used Ex.PW-7/F. This witness was cross- 10 examined but nothing materials supporting the case of the defence could be taken out in the cross-examination. 21. PW-8 HC Kartar Singh has reiterated the prosecution case. He has stated that accused opted to be searched by the police and memo to this effect Ex.PW-8/A was prepared in the presence of Naresh Gupta and Ashwani Kumar witnesses which was also signed by Bali Ram. The personal search memo of the witness is Ex.PW-8/B. He has given the details of recovery of Charas from the appellant. He has proved rukka Ex.PW-8/C, site plan Ex.PW-8/D, grounds of arrest Ex.PW-8/E and he has stated that he recorded the statements of witnesses. In cross- examination, he has stated that he carried out the proceedings from 6.30 p.m. to 10.30 p.m. on the spot where street light was available. He has been cross-examined regarding the time consumed for various steps during investigation. He denied that Charas was not recovered from the bag of the accused. He denied that proceedings were completed at Police Post, Banikhet. He also denied that signatures of PW Naresh Kumar were obtained by the police at his residence at about 10.30 p.m. He similarly denied that the signatures of PW Ashwani Kumar were also taken next morning at his residence. 22. PW-9 C. Om Parkash has stated that Superintendent of Police, Chamba handed over to him copy of rukka duly signed by him after making entry in the receipt register which is Ex.PW-9/A. On 7.3.2009 special report Ex.PW-9/B was handed over to him by HHC Hari Sharan at 3.10 p.m. after making entry in the receipt 11 register. He handed over the same to Superintendent of Police, Chamba. 23. The appellant in his statement under Section 313 Cr.P.C. has not taken any positive defence except that he is innocent. On behalf of the appellant, no violation of any statutory provision of the Act has been argued. The case has been argued only on the ground that prosecution story is highly improbable. The appellant has been falsely implicated in the case. 24. Ex.PW-2/A is the recovery memo of Charas weighing 2 Kgs. It is signed by witnesses Naresh Gupta and Ashwani Kumar. H.C. Room Singh has also signed Ex.PW-2/A as witness, it also bears the signatures of Bali Ram. PW-8 H.C. Kartar Singh has stated that case property was taken into possession vide seizure memo Ex.PW-2/A in presence of Naresh Gupta, Ashwani Kumar and H.C. Roop Singh and accused has also signed the memo. PW-2 Naresh Gupta has been declared hostile. It is settled law that simply a witness has been declared hostile, it is not necessary that on this ground alone his entire statement is to be discarded. PW-2 Naresh Gupta has stated that the bag was opened and it was found containing something black in the shape of balls and sticks. The polythene bag Ex.P-6 is the same and Charas Ex.P-7 is also the same. Once PW-2 has admitted that Charas Ex.P-7 was recovered in his presence, then it can be safely inferred that recovery of Charas was made in his presence but for reasons best known to PW-2 he in the Court has tried to help the accused. 12 Ashwani Kumar other independent witness has been left by the prosecution on the ground that he has been won over. 25. It has been submitted that there was no possibility of presence of independent witnesses at the time of alleged recovery of Charas from the appellant. PW-2 Naresh Gupta has stated that he was present in his shop at Bathri near rain shelter and the accused was nabbed by the police, who was carrying bag. Thus, it can be safely concluded that the appellant was nabbed near rain shelter by the police in presence of independent witnesses. It has been argued that site plan Ex.PW-8/D does not disclose the exact location. No street light has been shown at the place of recovery. It has come in the statement of PW-8 HC Kartar Singh that he carried the proceedings at the spot where street light was available. Merely street light has not been shown in the site plan Ex.PW-8/D that does not mean that the street light was not available on the spot. 26. It has been submitted that Section 20 of the Act has been mentioned even in the recovery memo Ex.PW-2/A. The case of the prosecution is that it is not a case of prior information. It has been submitted that in case the police had no prior information, then how Section 20 of the Act has been mentioned in the documents right from very beginning. The Investigating Officer has appeared in the witness box but no question was put to him how Section 20 of the Act has been mentioned in the documents. Simply Section 20 of the Act has been mentioned in the recovery memo Ex.PW-2/A and other documents prepared in the beginning, it cannot be said that the investigation in the case is tainted. The 13 possibility cannot be ruled out that when Investigating Officer started proceedings, he of his own came to the conclusion that it is a case of Section 20 of the Act and, therefore, he has mentioned Section 20 of the Act in the documents from the very beginning. The prosecution case on this ground cannot be thrown out. 27. It has been argued that search was conducted at 6.30 p.m. and rukka was prepared at 7.30 p.m. and in one hour the proceedings cannot be concluded upto the stage of rukka. The learned counsel for the appellant has pointed out that PW-1 HHC Mazid Mohammad has stated that rukka was handed over to him at 10.30 p.m. The appellant cannot take advantage from the statement of PW-1 that rukka was handed over to him at 10.30 p.m. It is admitted case that after rukka Ex.PW-8/C, FIR Ex. PW-7/A was registered. It has been stated in the FIR Ex.PW-7/A that information was received at Police Station on 5.3.2009 at 20:30 hrs. i.e. 8.30 P.M. The prosecution case, therefore, cannot be doubted regarding the preparation of rukka at 7.30 p.m. 28. It has also been stated that PW-1 Mazid Mohammad has stated that no proceedings were drawn after he handed over the case file to Investigating Officer at the spot. This part of the statement of PW-1 is in the context that he took the rukka and handed over the same to MHC Police Station, Dalhousie and after registration of FIR he handed over the case file to HC Kartar Singh. In other words, according to PW-1 after he handed over the file to H.C. Kartar Singh, no further proceedings were drawn in his presence by the Investigating Officer. This does not mean that after 14 the file was handed over by PW-1 to H.C. Kartar Singh, nothing was done by H.C.Kartar Singh regarding the investigation of the case. Therefore, the defence cannot take any benefit from this part of the statement of PW-1 Mazid Mohammad. 29. It has been submitted that in the arrest memo there is a cutting of figure ‘10’ and it creates suspicion. This argument leads to nowhere inasmuch as it is not the case of the appellant that he was not arrested. The alleged cutting in the arrest memo does not go to the root of the case and appellant cannot take any advantage of alleged cutting. The submission of learned counsel for the appellant that signatures of appellant on various documents are not similar and therefore, possibility cannot be ruled out that such documents are suspicious which create doubt in the prosecution case. The submission is noticed only to be rejected. The appellant in his statement under Section 313 Cr.P.C. nowhere stated that his signatures on documents are forged. The vague suggestion put to Investigating Officer on this point which he has denied is not enough to conclude that signatures of appellant on various documents are forged. 30. It has been argued on behalf of the appellant that the link evidence led by the prosecution is shaky in the present case and appellant is entitled to benefit on that count. PW-3 H.C. Hem Raj has stated that on 5.3.2009 H.C. Kartar Singh had produced the case property before SHO Sanjeev Bhatia which was sealed with seal ‘K’ alongwith specimen seal impression and NCB form. The case property was re-sealed by SHO Sanjeev Bhatia with seal 15 impression ‘X’ and memo in this regard was prepared which is Ex.PW-3/A and bears his signature. The seal after use was handed over to him. On 6.3.2009 MHC Bhajan Singh handed over one sealed parcel sealed with seal impressions ‘K’ and ‘X’ alongwith NCB form, sample seals ‘K’ and ‘X’ for being taken to FSL, Junga vide R/C No. 36/09 which he deposited at FSL, Junga on 7.3.2009. The case property so long remained in his possession was not tampered. He deposited the R/C on his return to the Police Station with MHC. 31. PW-4 HC Bhajan Singh has stated that on 5.3.2009 SHO Sanjeev Bhatia deposited with him two sample parcels, one big parcel which were sealed with seals ‘K’ and ‘X’ along with NCB form and sample seals of impressions ‘K’ and ‘X’. On 6.3.2009 he had sent one sample parcel alongwith sample seals ‘K’ and ‘X’ and NCB form vide R/C No. 36/09 dated 6.3.2009 through PW-3 C. Hem Raj for being taken to FSL, Junga. C. Hem Raj after depositing the articles at FSL, Junga handed over R/C to him on return. He has proved copy of RC Ex.PW-4/A and copy of Malkhana Register Ex.PW-4/B. 32. PW-7 Inspector/SHO Sanjeev Bhatia has stated that on 5.3.2009 H.C. Kartar Singh produced the case property comprising of one bigger parcel, two sample parcels, three sample seals of seal impression ‘K’ and NCB form. He resealed the bigger parcel and the sample parcels with seal impression ‘X’ by affixing two seals on each of the parcels. The seal impression of seal ‘X’ was also taken on a separate piece of cloth. The relevant columns 16 of NCB form were filled in by him. The impression of seal was also affixed on NCB form. The reseal memo Ex.PW-3/A was prepared and seal after use was handed over to PW-3 Hem Raj. The case property was deposited with MHC Bhajan Singh including NCB form and seal impressions ‘K’ and ‘X’. 33. PW-8