IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 193 of 2008 Reserved on: 23.5.2008 Date of decision: 26.06.2008 Mohinder Singh ... Appellant Versus State of H.P. … Respondent Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellant: Mr. Dushyant Dadwal, Advocate. For the respondent: Mr. J.S. Guleria, Law Officer. V.K. Ahuja , J. (Oral): This is an appeal filed by the appellant under Section 374 of the Code of Criminal Procedure against the judgment of the Court of learned Additional Sessions Judge, Fast Track Court, Una, dated 16.1.2006, vide which the appellant was held guilty and sentenced under Section 15 of Narcotic Drugs and Psychotropic Substances Act hereinafter to be referred as the ‘N.D.P.S. Act’ and was sentenced to rigorous imprisonment for a period of 5 years and to pay a fine of Rs.20,000/-. In default, the appellant was to further undergo rigorous imprisonment for one year. Briefly stated the facts of the case are that on 11.6.2003 a police party headed by PW-10 HC Nardev Singh raided the house of the 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 appellant after forming a raiding party on receipt of a secret information. The Investigating Officer associated two independent witnesses, namely, Parkash Singh PW-1 and one Tarlochan Singh alongwith other police officials. Before conducting the search, PW-10 HC Nardev Singh gave an option to the appellant/accused if he wanted to give his search before a Gazetted Officer or a Judge or before police and the accused opted to get the search conducted by the police. Thereafter, a search was conducted of the house of the accused and behind one T.V. in a polythene bag 5 Kg. of poppy husk was recovered in presence of the accused. Two samples of 200 grams each were taken and the samples and remaining poppy husk were sealed separately. After sealing them, the Investigating Officer supplied the grounds of arrest to the accused, prepared the recovery memos etc. and also sent a special report to S.P. Una and after completion of investigation, the challan was filed resulting in the trial of the appellant by the learned trial Court leading to the conviction and sentence as imposed upon the appellant as detailed above. I have heard the learned counsel for the parties and have gone through the record. The submissions made by the learned counsel for the appellant were that there is some contradiction in regard to the time when the search was conducted of the house of the appellant. It was also submitted that as per the statement of PW-1 Parkash Singh, the search was conducted in his presence only and other members came subsequently. It was also submitted that no independent witnesses from the locality were associated and one of the independent witnesses Tarlochan Singh was given up without there being any valid reason for not examining him. It was also submitted that the search was conducted by the constable which was not 3 proper and there was no A.S.I. or S.I. in the raid and since the Head Constable was not authorized, the prosecution has failed to prove their case beyond any reasonable doubt and no reliance can be placed upon the testimony of the prosecution witnesses. On the other hand, the learned Law Officer submitted that the search was conducted by the Head Constable who is senior to a constable and is authorized under Section 42 of the Act to conduct the search. It was also submitted that since PW Tarlochan Singh was won over by the accused, he was not examined by the prosecution and it is not necessary that both the independent witnesses should have been examined by the prosecution. It was also submitted that there are no material contradictions or infirmities in the statement of the prosecution witnesses, which inspires confidence and as such, there is no merit in the appeal filed by the appellant, which deserves to be dismissed accordingly. The evidence of the prosecution shall be appreciated in the light of the submissions made by the learned counsel for the appellant as well as learned Law Officer for the respondent. Coming to the first contradiction in regard to the time, PW-10 HC Nardev Singh was the Incharge of the raiding party who conducted the raid. No questions were put up to him regarding the exact time of the raid nor this was stated by him. PW-1 Parkash Singh, an independent member of the raiding party, has stated that the search of the house of the accused was made at around noon. He also stated that he is an illiterate person meaning thereby he does not have much sense of timings. A perusal of the statement of PW-2 Suresh Kumar, constable, shows that on receipt of a secret information HC Nardev Singh recorded statement Ext. PG and sent the same to Police Station for registration of the case, on the basis of which FIR 4 was registered. A perusal of Ext. PG shows that secret information was received at about 2.10 P.M. and FIR was also registered on the basis of this statement at about 4.00 P.M. and it had been even received by the Judicial Magistrate on the same day at 5.25 P.M. as per endorsement on FIR Ext. PM. The distance mentioned in between the place of occurrence and Police Station is 22 K.M. PW-3 HHC Sher Bahadur has stated that a secret information was received and Ruka Ext. PG was sent through constable Suresh Kumar and thereafter, a report under Section 42(2) was prepared which was sent to S.P. Una at 3.50 P.M. PW-9 C. Upnesh Kumar, has also stated that his statement was recorded by HC Nardev Singh Ext. PG mentioned above, in which time has been mentioned regarding receipt of information as 2.10 P.M. No specific questions were put up to him in regard to the actual time of raid, though he stated that the information was received at 2.10 P.M. The above discussion clearly leads to the inference that there are no material contradictions in regard to the time of raid since all the witnesses have not stated about the exact time of raid. But the evidence is in regard to receipt of information and PW-1 Parkash Singh only has stated that the raid was conducted around noon and I have also observed that he is an illiterate person meaning thereby he is having no sense of exact time and, therefore, there are no material contradictions in regard to the time which even if it was there is not very material keeping in view the fact that there are no contradictions in regard to the other facts as shall be discussed below. Coming to the plea that no independent witness was associated or that only Parkash Singh and Tarlochan Singh were associated but one of them was given up and there is no valid reason. A perusal of 5 statement of PW-1 Parkash Singh shows that his house is at a distance of 700 meters, away from the house of the accused. He also stated that the house of Tarlochan Singh was almost at the same distance from the house of the accused and they both were present when the police party joined them as independent witnesses in the raiding party. There is nothing in the statement of PW-1 Parkash Singh to show that he is a stock witness of the police or that he is a person having some enmity with the accused or that he cannot be termed as a respectable person of the locality. Thus, both these witnesses were from the area and there is nothing to hold that they were not respectable persons or stock witnesses and as such, the requirement of Section 100(4) Cr.P.C. was duly complied with about joining of two independent witnesses of the locality and as such, the plea raised in this regard is repelled being devoid of any force. Coming to the plea about the non-examining of other witness, the learned P.P. for the State had given up Tarlochan Singh PW as having been won over by the accused. It is not necessary that the prosecution should have examined both the independent witnesses who were associated at the time of search. The requirement of law is that two independent witnesses of the locality who are also respectable should be associated and not that the prosecution should ensure that both the witnesses are examined and they also support the prosecution story. Therefore, the non-examination of other eye witness does not affect the merits of the case particularly when the case of the prosecutions rests upon the statements of PW-10 HC Nardev Singh, duly corroborated by an independent witness PW-1 Parkash Singh as well as the statement of PW-9 C.Upnesh Kumar, who was also a member of the raiding party. There are no material contradictions in the statements of these three witnesses so as to 6 hold that there statements do not inspire confidence. A perusal of the statement of PW-10 HC Nardev Singh, Investigating Officer, clearly shows that he firstly recorded the statement Ext.PG received by him, sent information under Section 42(1), a copy of which is Ext.PH and then after associating two independent witnesses, he conducted the search of the house of the accused. He clearly stated that he gave an option to the accused vide notice Ext.PA which was signed by the witnesses and accused and thereafter, offered his search vide Ext. PE and thereafter, prepared the recovery memo after recovery of the poppy husk, supplied the grounds of arrest to the accused and also completed other formalities. He has also stated that he produced the case property before Head Constable Ved Prakash who was officiating at that time as S.H.O. This statement has been duly corroborated by the statement of PW-1 Parkash Singh and PW-9 C. Upnesh Kumar and there are no material contradictions in the statements of these witnesses to hold that they cannot be relied upon. Coming to the search conducted by the Head Constable, Section 42 of the N.D.P.S. Act specifically provides that the search can be conducted by any such officer being an officer superior in rank to a peon, sepoy or constable and a Head Constable is a person above the rank of a constable and, therefore, the search conducted by PW-10 HC Nardev Singh cannot be termed as illegal. Coming to the plea that the search was conducted by a constable, PW-1 Parkash Singh has only stated that the police party which raided the house of the accused comprised of 5-6 officials apart from these two independent witnesses and he simply stated that the house of the accused was searched by a constable and not that the recovery in question was effected by the constable or that the other police officials remained 7 sitting outside. No specific questions were put up to PW-10 HC Nardev Singh in this regard that search was conducted by constable and that he remained sitting outside when the search was conducted as stated by PW-1 Parkash Singh. He did not rule out the presence of other persons or that they were not present at that time. The learned trial Court had discussed the evidence in detail as well as the plea raised during the cross-examination of the witnesses and nothing had come up on record to hold that the statement of the prosecution witnesses are such which cannot be relied upon. The prosecution had also examined PW-3 HHC Sher Bahadur who has stated that the information received under Section 42(2) was prepared and sent to S.P. Una and he delivered the same on the same day at 3.50PM to S.P. Satwant Atwal and as such, there was compliance of the mandatory provisions of Section 42(2) as well as in regard to sending of special report under Section 57 of the Act to S.P. Una. There is nothing on record to show that the independent witness examined, namely, Parkash Singh had any enmity with the accused. No plea of joint possession was raised by the learned counsel for the appellant during the course of arguments. The statement of PW-1 Parkash Singh is clear that when the police went to the house of the accused, the accused was sitting on his cot when they reached his house. He had only stated that the accused is residing with his wife, but there are no suggestions that recoveries were effected from a house in joint possession or the accused has no concern with the poppy husk recovered at that time. PW-9 C. Upnesh Kumar has simply stated that he does not know how many members of the family were living in the house of the accused, though he has seen his wife but does not know whether elder brother of the accused resides in the same house. PW-10 HC Nardev Singh in his cross- examination stated that family members of the accused reside in a separate 8 house and there were no suggestions put to him that his wife and children were living in this house from where the poppy husk was recovered. On detail examination of the evidence led by the prosecution, it is clear that there are no contradictions or infirmities in the statements of the prosecution witnesses and as such, the findings recorded by the learned trial Court holding the appellant guilty under Section 15 of the N.D.P.S. Act are liable to be affirmed and they are affirmed accordingly. At the fag end of the case, a plea was raised by the learned counsel for the appellant that in case the Court finds the appellant guilty, a lenient view may be taken since there is nothing as against the appellant that he is involved in such nefarious and illegal activities and no previous conviction has been proved or alleged against him. It was also submitted that the appellant is already in custody for the last more than three years and as such, the sentence imposed upon him may be reduced accordingly. A perusal of the statement made by the accused under Section 313 Cr.P.C. shows that he has given his age as 55 years. No previous conviction has been alleged or proved as against the appellant. The learned trial Court had observed at the time of sentencing the appellant that he has claimed to be a sole bread earner in the family having two daughters including one son and wife and one daughter is of marriageable age and remaining children are of young age. A perusal of the record shows that the appellant is in custody since the date of his conviction i.e. 16.1.2006 and earlier he was in custody for sometime and thereafter was bailed out and he was on bail during the trial of the case. Keeping in view the facts of the case and as per the submissions made at that time, when he was sentenced by the learned trial Court, the sentence imposed upon the appellant is reduced from 5 years to 3 years and he shall be liable to pay fine of Rs.15,000/-. In 9 default of payment of fine, he shall further undergo rigorous imprisonment for a period of six months. The appeal filed by the appellant is partly allowed and is modified as detailed above. ( V.K. Ahuja ) June 26, 2008 Judge (BSS) 10