IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr.A. No . 318 of 2006 Reserved on: 25th June, 2008 Decided on : 7th th July, 2008 Shamshad. ……. 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. D.S. Dalee, Advocate. For the Respondent : Mr. P.K. Sharma, Addl. Advocate General. Surinder Singh,J. The appellant has challenged the judgment of his conviction, passed by the learned trial Court under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, in short the ‘Act’ whereby he was sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.2,00,000/- in default of payment of fine, further to undergo the rigorous imprisonment for a period of two years, allegedly having found 4 Kgs Charas, in his Maruti Alto Car driven by him, which was also ordered to be confiscated to the State. 1 Whether the reporters of Local Papers may be allowed to see the judgment ?Yes - 2 - PROSECUTION CASE: In brief, the prosecution case is that on 21.9.2004, the police party headed by the then HC Lal Chand (PW10) put a Naqa on the Mandi-Kullu National Highway at forest check post at ‘Barindavani’ near Mandi Town. Besides the said Head Constable, another HC Nanak Chand, Constables Khem Chand, Narain Singh and Forest Guard Lelin Sharma (PW7) and Chowkidar Rattan Chand were also present there. Around 12.30 p.m., a new ‘Maruti Alto Car’ bearing temporary registration No.HP-33-9616(T) came from Kullu side, which was being driven by the appellant. On noticing the police, the appellant got frightened which raised their suspicion. Thus, his car was checked by PW10 HC Lal Chand, in the presence of PW7 Lelin Sharma Forest Guard and Rattan Chand, Chowkidar of the forest check-post. On checking the dickey of the car, the police noticed the loose screws of cardboard fixed in the dickey-door. The screws were removed and the cardboard was taken out and the police found 12 packets wrapped in polythene papers and a steel container, which contained Charas. - 3 - PW8 HC Nanak Chand arranged the scales from a nearby shop of PW1 Arun Kumar. The charas was weighed, which was found to be 4 Kgs. PW10 HC Lal Chand drew two samples 25 grams each from the recovered quantity for chemical analysis. Both the samples were separately sealed with seal impression `R’ and the remaining bulk was also sealed with the same seal in the presence of witnesses aforesaid. The specimen impression of the seal was taken on pieces of cloth Ex.PW7/D and E, which were also signed by the witnesses aforesaid as well as the appellant. The NCB Form Ex.PW6/A, in triplicate was filled in, over which the facsimile of seal ‘R’ was also taken. The seal after its use was handed over to PW7 Lelin Sharma Forest Guard. The signatures of the witnesses were also taken on the sealed parcels Ex.P2 and other two samples out of which one is Ex.P3. The case property and the car of the appellant were taken into possession vide seizure memo Ex.PW7/A. Its copy was handed over to the appellant. Ruqa Ex.PW10/A was sent to police station Sadar, Mandi through PW9 Constable Khem Singh - 4 - No.243 for the registration of the case, on the basis of which FIR Ex.PW4/A was formally registered. PW10 HC Lal Chand aforesaid prepared the site plan Ex.PW10/B. He also conducted personal search of the appellant and prepared a memo Ex.PW7/B of the articles found in his possession. The appellant was arrested and grounds of arrest Ex.PW10/C were informed to him. HC Lal Chand recorded the statement of PW7 Lelin Sharma Forest Guard Ex.PW10/D and that of PW1 Arun Kumar Ex.PW10/E under Section 161 of the Code of Criminal Procedure. PW 10 HC Lal Chand took the case property and the accused to police station, Sadar Mandi and handed over to SHO N.K. Sharma (PW6). PW6 SHO N.K. Sharma resealed the case property with his own seal, producing the impression of English letter ‘N’ and deposited the same in the Malkhana with PW2 MHC Baldev Singh and he also took the seal impression of letter ‘N’ on the NCB form Ex.PW6/A. The specimen of the seal ’N’ was also taken separately on a piece of cloth Ex.PW6/B. On 23.9.2004, PW2 MHC Baldev Singh handed over one sample parcel alongwith specimen of seals ‘R’ - 5 - and ‘N’ to Constable Khem Singh No.244 (PW9) [ wrongly numbered as PW-9 as PW9 is another Constable Khem Singh No.243 ] vide R.C. No.151/2004 Ex.PW2/A, for its deposit in CTL Kandaghat for examination, which was deposited by him on the same day in the laboratory and obtained the receipt on the aforesaid road certificate, which was handed over to MHC Baldev Singh on his return. On the receipt of the report of the examination Ex.PW6/C, which confirmed the said sample contents to be that of Charas, the challan against the appellant was presented in the court for his trial. TRIAL COURT FINDINGS. The appellant was charge-sheeted for the aforesaid offence, to which 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. He denied the prosecution case as alleged. However, the appellant admitted that he was intercepted by the police at the forest check post at 12.30 P.M. but according to him, the police party only checked the documents of his vehicle and - 6 - thereafter he was permitted to go but no recovery as alleged was effected. He reached his residence in Mandi Town. Thereafter, he was again taken to the police station Sadar Mandi, where he was made to sit for sometime, inside the police station, then he was taken to forest barrier Brindavani, where his signatures and the witnesses were taken on some papers and parcels. According to him, PW10 HC Lal Chand was not having good terms with him, thus he foisted this case upon him. The appellant produced DW-1 Saurv Arora, a college student and his neighbor. According to him, he was sitting in the college ground, in front of the police station. At about 11/12 O’clock, a police man approached him and asked whether he knew driving. He answered in affirmative and then he was told to drive Alto car of the appellant, parked in police station to take it towards forest-barrier Brindavani. The appellant and three policemen were the other occupants of the car. On reaching the forest barrier, he immediately returned. During the trial PW1 Arun Kumar, from whose shop the scales and weights were arranged and PW7 Forest Guard Lelin Sharma, turned hostile to the prosecution, however, the learned trial court - 7 - relied upon the other oral as well as documentary evidence of the prosecution on record and came to the conclusion that the prosecution has been able to prove the charge against the appellant beyond a reasonable doubt, accordingly he was convicted and sentenced as aforesaid, which has been assailed by him in this appeal on law and facts. SUBMISSIONS MADE BEFORE US. Heard. Shri D.S. Dalee, learned counsel for the appellant submitted that the learned trial court wrongly ignored the statement of PW7 Lelin Sharma Forest Guard, who only deposed truth. From the evidence on record, it appears that the police had prior information and there are material contradictions with respect to the stopping of car and its recovery and that the defence version and the statement of DW1, another truthful witness was not considered in the right perspective. The main plank of his contentions may be summed up as under:- (i) The trial is vitiated for non-compliance of Section 42 (2) of the Act. (ii) PW7 Lelin Sharma Forest Guard, who was a witness of the search did not corroborate the case of the prosecution, rather probablised - 8 - the defence version, which raises a serious doubt in the veracity of the prosecution case. (iii) It is alleged that the appellant stopped the car after crossing the police party before the barrier, whereas in the spot map Ex.PW10/E, the car is shown to have been stopped at point-A across the barrier towards Mandi side, whereas PW7 Lelin Sharma has stated the barrier was closed, which falsify the story of the prosecution case. Contra, Shri P.K. Sharma, learned Additional Advocate General sought to support the impugned judgment of the learned trial court and contended that the present case fell within the ambit of Section 43 and not Section 42 of the Act. Secondly, PW7 Lelin Sharma Forest Guard though did not support the prosecution case regarding recovery as alleged to give benefit to the appellant for obvious reasons, but significantly he admitted his signatures on the memos as well as on the case property. The other official witnesses have supported the prosecution case in its totality without any contradiction. Looking into the quantity recovered it cannot be said to be a planted case for no convincing reasons. Thirdly, the appellant has admitted that his vehicle was checked at the forest barrier at 12.00 O’clock and the story of his relieving from the spot and then - 9 - again bringing to the spot by the police stands falsified even by defence witness as according to him he was called by the police at 11/12 O’clock to drive the vehicle to the spot. We have given our thoughtful consideration to the rival contentions of the parties and have carefully gone through the evidence on record. Now we proceed to deal with the above contentions raised, one-by-one. CONTENTION NO.(i) In fact Section 42 of the Act, authorizes an officer of the Departments enumerated therein, who are duly empowered in this behalf, to enter into and search any such building, conveyance or place, if he has reason to believe from his personal knowledge or information given to him by any person and taken down in writing that any narcotic drug or psychotropic substance etc. is kept or concealed in any building, conveyance or enclosed place. This power can be exercised freely between sunrise and sunset but between Sunset and sunrise if such an officer proposes to enter and search such building, conveyance or enclosed place, he must record the grounds for his belief that a search warrant of authorization cannot be obtained without affording - 10 - opportunity for the concealment of evidence or facility for the escape of an offender. Whereas, Section 43 of the Act provides that any officer of any of the Departments mentioned in Section 42 may seize in any public place or in transit any narcotic drug or psychotropic substance, etc. in respect of which he has reason to believe that an offence punishable under the Act has been committed. He is also authorized to detain and search any person whom he has reason to believe to have committed an offence punishable under the Act. Explanation to Section 43 lays down that for the purposes of this section, the expression “public place” includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public. As a matter of fact, Sections 42 and 43 contemplate two different situations. In State of Haryana v. Jarnail Singh and Others [ (2004) 5 Supreme Court Cases 188] the Apex Court has held that Section 42 contemplates entry into and search of any building, conveyance or enclosed place, while Section 43 contemplates a seizure made in any public place or in transit. - 11 - In the instant case, the police had no prior information that the appellant would cross through the forest barrier with the contraband in a vehicle. The police had put the ‘Nakabandi’ at the said forest barrier in a routine manner and in the instant case the narcotic was seized from the car from a public place in transit, therefore, it is Section 43 which is applicable and not Section 42 of the Act. Thus in our view, the trial of the appellant is not vitiated for want of compliance of the provisions of Section 42(2) of the Act. CONTENTION NO.(ii) According to the case of the prosecution, the appellant was found driving his new Alto car at 12.30 p.m. on 21.9.2004 at forest barrier Brindavani while coming from Kullu side, by the police party headed by PW10 HC Lal Chand. He was stopped at the barrier for checking. On inquiry, he disclosed his address, but he looked somewhat frightened, thus PW-10 aforesaid got suspicious and searched his car and the aforesaid quantity of Charas was recovered. On this score, the statement of both PW10 HC Lal Chand and PW8 HC Nanak Chand are consistent and they have fully supported the prosecution version. In their cross-examination, - 12 - the appellant did not dispute that his car was not checked at 12.30 p.m. as alleged. Though at the tail-end in the cross-examination of PW10 a stray and a vague suggestion was put and denied that he was not in good terms with the accused. The appellant did not give any cogent explanation as to why PW8 HC Nank Chand was deposing against him. Nothing was imputed to him. Although PW7 Lelin Sharma Forest Guard was declared hostile as he did not support the case of the prosecution in toto, but he admitted that on 21.9.2004 around 12.00 noon the police party had arrived at forest check barrier and the car of the appellant came from Kullu side around 12.30 p.m., which was stopped, but according to him nothing was recovered from the car. However, after some time, the police received a telephonic message then they rushed towards Mandi Town and returned after two hours alongwith the appellant and his vehicle to the forest barrier and informed him that Charas was recovered from the said car. In view of this statement the version given by the defence witness (DW1) is wrong that he drove the car of the appellant to the forest barrier alongwith the appellant and the policemen and reached there at 12 - 13 - ‘O’clock. Further if the police had recovered the contraband from the said car after chasing him as stated by PW7 then there was no necessity or requirement to bring back the appellant alongwith his car and contraband to the forest barrier. The statement of PW7 and the deposition of DW1 Saurav Arora are irreconcilable and no dent is caused in the prosecution case. Further, in the cross-examination conducted by the learned Public Prosecutor significantly, PW7 also admitted his signatures and other witnesses on the recovery memo Ex.PW7/A. He also admitted his signatures on the memo of personal search Ex.PW7/B, seizure memo Ex.PW7/C, and specimen seal Ex.PW7/D. He further admitted that the police did not exercise any pressure upon him to sign the aforesaid memos. He is a matriculate and according to him he signs the papers after going through the contents of the same, but at that time, he was busy. He did not say where he was busy at that time. He stated that before signing the papers he did not deem it necessary to go through the contents, however, admitted that when the timber is seized at the barrier, then he signs the papers - 14 - only after going through the contents, it being a matter concerning his department. On the scrutiny of the aforesaid evidence, we are constrained to hold that the version given by PW7 Lelin Sharma Forest Guard is not correct. As already noticed above, he had denied having made any recovery by the police from the car in question, but at the same time, he admitted his signatures on the sample Ex.P3 and the bulk of Charas Ex.P2 and he did not explain how, when and under what circumstances, he happened to sign the said parcels, without asking the police what the said parcels contained. The Forest Guard, a Government employee who is a literate person cannot afford to sign blindly on the documents and the parcels without knowing and going through its contents knowing-fully well that later he would be asked in the court of law to depose and explain his act and conduct. How could he have remained quite oblivious to this fact? Therefore, we are not convinced with the arguments advanced by the learned counsel for the appellant that PW7 Lelin Sharma Forest Guard was a truthful witness and probablised the defence version. The defence version itself is improbable as discussed above, - 15 - whereas, the prosecution story as spelt out by PW 10 HC Lal Chand and the other witnesses of the recovery is reliable in view of the important admissions made by PW7 Lelin Sharma and the appellant himself. The defence put forth could not probablise the plea of the appellant. CONTENTION NO.(iii). The next contention is with respect to the contradiction in the site plan Ex.PW10/B and the oral statement of PW7 regarding the stoppage of car in question. The then Investigating Officer PW10 HC Lal Chand and PW8 HC Nanak Chand have stated that the car aforesaid was stopped at forest check post Brindavani while it was on its way from Kullu to Mandi. It was driven by the appellant himself. It was stopped by the appellant just before the barrier, at a distance of 6/7 feet from them whereas in the spot map Ex.PW10/B, the barricade is depicted by dots and the car is shown having been stopped at Point-A, across the barrier towards Mandi-side which according to the learned counsel for the appellant is a material contradiction. It is worth noticing that none of the witnesses except PW7 have stated that the police had put the barricade on the spot. The prosecution - 16 - story initially set did not say that the police had directed the forest officials to close the barrier nor it has been shown in the site plan aforesaid that the forest barrier was closed as stated by PW7 nor it was possible as PW-10 has stated that it was a very busy road and there was a good frequency of the traffic on the road, therefore on this score, PW-7 is not reliable. We find consistency in the statements of other witnesses and none of them has stated that the barrier was closed. Thus, we find no material contradictions in the testimony of other official on this score. On sifting the evidence on record, we have found that at the relevant time, the appellant was driving the vehicle and the recovery of 4 Kgs of Charas was effected from the dickey of the car, as alleged. Two samples of 25 grams each were separated which were sealed with seal impression ‘R’ in the presence of the witnesses aforesaid and the remaining bulk was sealed with the same seal. The signatures of the appellant and all the witnesses were obtained on the samples as well as the remaining bulk. The recovery memo Ex.PW7/A was prepared on the spot. The car was seized. The appellant was arrested and he was informed the - 17 - grounds of arrest vide memo Ex.PW10/C, which was also signed by PW7 Lelin Sharma as a witness. NCB form was prepared in triplicate on the spot. The case property was produced before Inspector N.K. Sharma (PW6). He resealed the samples as well as remaining bulk with his own seal producing the impression ‘N’. Its specimen was also taken on a piece of cloth Ex.PW6/B. The case property was deposited with PW2 HHC Baldev Singh by Inspector N.K. Sharma (PW6), which was entered into Malkhana register on 23.9.2004, copy of which is Ex.PW2/B. The specimen seal parcel was sent vide RC No.161/2004 Ex.PW2/A alongwith NCB forms, sample of seals, photocopy of the FIR through PW9-A C. Khem Singh No.244, for analysis, which was deposited by him on the same day in the Laboratory and took the receipt on the R.C. On analysis, the sample was found that of charas as per the report Ex.PW6/C. The special report was sent within time to the officer superior. The link evidence is complete, which has been supported by the witnesses of the prosecution, as discussed above The recovery of the charas has been proved. By virtue of Section 54 of the Act there is a strong presumption against the appellant that he - 18 - has committed the said offence to which the appellant could not rebut. Therefore, in our considered opinion the testimony of PW7 Lelin Sharma, a hostile witness can be relied upon to the extent it supports the prosecution case, which is also consistent with the statement of other witnesses. However, the accused could also make its case to the extent it helps him but we find that his testimony could not create any doubt in the prosecution case and we did not find any ambiguity, contradictions and omissions in the statements of other official witnesses, thus their testimonies bear a ring of truth. The police have no axe to grind in implicating the appellant by planting 4 Kgs. of Charas. On the re-examination of the evidence on record and the findings of guilt recorded by the trial court in impugned judgment, we could not discover any illegality therein, therefore, the conviction of the appellant and substantive sentence passed is upheld. As far as the sentence of fine is concerned, it appears to be a little bit harsh, therefore, only the sentence of fine is modified to the extent that the appellant shall pay a fine of one lac as against two lacs and in - 19 - default of payment of fine, he shall further undergo rigorous imprisonment for a period of one year instead of two years awarded by the learned trial court. With the above modifications the appeal is dismissed. Send down the records. (Surjit Singh), Judge. (Surinder Singh), Judge. July 7th,2008 (Pds)