IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. appeal Nos. 25/2009 & 652/2008 Judgment reserved on 13.5.2010 Date of decision: 27. 5. 2010 Cr. Appeal No. 25/2009. Ashok Kumar …. Appellant Versus State of H.P. ……Respondent ________________________________________________ Cr. Appeal No. 652/2008. Rajinder ….Appellant Versus State of H.P. ……Respondent Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 For the Appellant: Mr. Ajay Kochhar, Advocate. Mr. Anup Chitkara, Advocate, for the petitioner in Cr. A No. 652/2008. For the respondent : Mr. Anshul Bansal, Addl. Advocate General with Mr. J.S. Rana, Assistant Advocate General. Surinder Singh J. Both these appeals one against the conviction and sentence another confiscation of 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. yes - 2 - qualis vehicle, are arising out of the same judgment hence taken up together for its just decision. 2. In criminal appeal No. 25/2009 appellant Ashok Kumar has challenged the judgment of his conviction passed in Sessions trial No. 23/2007 decided on 17.6.2008, by the learned Special Judge under Section 20 read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 in short ‘the Act’, for allegedly transporting in qualis vehicle 2.600 grams of charas having resin contents of 37.49% along with convict Sandeep Kumar and sentenced to undergo imprisonment for a period of 9 years and to pay a fine of Rs.90,000/- each and in default of payment of fine, to further undergo simple imprisonment for a period of one year. The period of pre-detention and during trial undergone by him was ordered to be set-off as per Section 428 of the Code of Criminal Procedure which has been challenged in appeal only by Ashok Kumar, whereas co-convict aforesaid is undergoing his sentence. 3. By the same order Quails vehicle bearing registration No. HR-6J-9458 was also ordered to be confiscated to the State of H.P., against which prosecution witness Rajinder claiming himself to be - 3 - the owner filed Criminal appeal No. 652/2008 contended that impugned order of confiscation was passed without notice to him, thus it being wrong and illegal. 4. In short, prosecution case can be stated thus. On 26.1.2007, Inspector Manohar Lal was heading a Police patrolling party consisting of Sub Inspector Sohan Singh, H.C. Shyam Lal, H. C. Jagdish Chand and Constable Amar Singh were in official Maruti Van No. HP34-A-0049 being driven by constable Megh Singh in the area of Chila-aage (Chiladhar) near Manikaran Kenchi Mour. At about 5.30 a.m., they noticed a qualis vehicle coming from the opposite side. It was stopped for checking. Ashok Kumar appellant was sitting on the driving wheel. Inspector Manohar Lal asked about his identity and driving licence, simultaneously also asked Sandeep Kumar sitting besides him and checked the vehicle. While doing so police noticed a white polythene envelope between the legs of co- accused Sandeep Kumar. It aroused suspicion. Since it was a secluded place and no independent witness was available in the wee hours of the morning, Inspector Manohar Lal associated S.I. Sohan Singh and H. C. Shyam Lal as search - 4 - witnesses. Polythene envelope was opened and checked. It contained charas in the shape of chapaties balls and sticks which, on weight came out to be 2.600 grams. 5. Police separated two samples of 25 grams each which were sealed in two separate parcels with seal impression that produced the impression of English alphabet ‘A’ and the remaining bulk was also sealed with the same seal. N.C.B. forms in triplicate were filled-in on the spot. Facsimile of the seal was also affixed on the said form. Case property was taken into possession vide memo Ext.PB. 6. The scrutiny of the documents of vehicle by the Police revealed that one Shri Munish Ahmad son of Janudin resident of Maholla Imam Sahab, Jattal Road Panipat (Haryana) was the registered owner. These documents were taken into possession along with the driving licence of Ashok Kumar. 7. Ruka was sent for registration of the case through H.C. Shyam Lal which culminated into FIR No. 64/2007. Police prepared the site plan of the place of occurrence. Appellant along with his co- - 5 - accused were arrested and apprised of the grounds of arrest. 8. Case property along with appellant and his co-accused were taken to the Police Station Kullu and produced before S.I. S.H.O. Joginder Singh in Police Station Kullu. He re-sealed the case property with seal impression that produced the impression of English letter ‘T’. Facsimiles of the said seal were also taken on the NCB forms in triplicate. Case property was deposited with MHC Rup Singh in the malkhana, entry of which was also made in the Malkhana Register. 9. The special report was prepared and sent by Inspector Manhoar Lal (PW9) to Dy. Superintendent of Police, Head Quarter, Kullu, within time. 10. On 28.1.2007 MHC aforesaid handed over one of the sample parcel along with NCB forms and other relevant documents to PW4 HC Jai Kishan vide a road certificate. He deposited it in FSL Junga. On its deposit, he obtained receipt on the R.C. which on his return was deposited by him with MHC at Police Station, Kullu. 11. On the receipt of the report of analysis Ext. PM from FSL Junga, and after completing the - 6 - investigation, challan was presented in the court for the trial of the appellant along with his co-accused. 11. The appellant and co-accused Sandeep were charge sheeted for the offences aforesaid. They pleaded not guilty and claimed trial. 12. To prove its case, prosecution examined its witnesses and appellant along with co-accused were examined under Section 313 of the Code of Criminal procedure. They raised the defence that on 26.1.2007, both of them were going to Chandigarh in a Bus. At Bajoura Chowk, they were alighted from the bus by the police and brought to Police Station Kullu. Charas was not recovered from any of them. It was recovered from an abandoned qualis vehicle which was planted on them. They were falsely implicated in the case. Their signatures were obtained by the police by giving beatings to them. 13. Appellant Ashok Kumar along with his co- accused were called upon to enter into defence but no evidence in defence was led. At the end of the trial, both the accused persons were convicted and sentenced as aforesaid. 14. As already stated above, Sandeep Kumar co-accused did not file any appeal. He is stated to - 7 - be undergoing the sentence whereas the appellant Ashok Kumar has questioned his conviction and sentence by way of this appeal. 15 Shri Ajay Kochhar learned counsel for the appellant forcefully argued that there are material contradictions in the statements of the witnesses which rendered the prosecution case doubtful. He also led me through the evidence on record and tried to point out the discrepancies in the prosecution case, which according to him are fatal to the prosecution case. 16. Contra Shri J.S. Rana, Assistant Advocate General supported the impugned judgment of conviction and sentence. 17. I have given my thoughtful consideration to the rival contention of the parties and have carefully reappraised and critically examined the evidence on record. 18. PW9 Inspector Manohar Lal while supporting the case of the prosecution categorically stated that appellant Ashok Kumar was on the driving wheel of the qualis and his co-accused was sitting besides him. The vehicle was stopped and registration certificate was demanded from Ashok Kumar appellant. There were insertion of word - 8 - “Sankirti Nagar New Delhi” on the outer portion of polythene envelop which was kept near the seat of Sandeep Kumar. He got suspicious. It was a secluded place and no independent witness was available on the spot. Thus, he associated police officials aforesaid as the witnesses and searched envelope and recovered 2.600 Kilograms of charas, out of which two samples of 25 grams each were separated and sealed separately with seal impression ‘A’. Seal after its use was handed over to Jagdish Chand (PW2). Sample of seal was also taken on a piece of cloth. The remaining bulk was also sealed with the same seal. Case property was taken into possession vide seizure memo Ext. PB. Beside supporting other part of the prosecution story, as stated above, he further testified that the vehicle in question along with its documents and the driving license Ext. PD of the appellant was taken into possession. He handed over the case property to SHO Joginder Singh in intact position, he resealed it in his presence. 19. On 28.1.2008 he prepared the special report and handed over it to Dy. S.P. Head Quarter Kullu. The version of Inspector S.I. Manohar Lal was corroborated in extenso by PW2 H.C. Jagdish - 9 - Chand. Both these witnesses were subjected to the lengthy cross-examination. Manohar Lal stated that they proceeded from Police Station Kullu at 10.55 p.m. and had also gone to Banzar area which is about 50 k.m. from Kullu where they stayed for two hours and came back to Larji. He did not remember whether that they had checked any vehicle near larji but according to him, they reached Bhuntar around 1 a.m. They did not conduct any traffic checking at Bhuntar or Shamshi. The distance between Bhuntar and the place of occurrence is stated to be 6/7 K.M. He further stated that they did not stop between Bhuntar and the place of occurrence. Within 20 minutes, they were at Bhuntar. He also stated that it was night and winter season. Hardly one or two vehicles had passed through that road. He also testified that appellant Ashok Kumar had shown the driving license to them when asked to show the documents of the vehicle. He further stated that polythene envelop was taken out by him in the presence of S.I. Sohan Lal, Shyam Lal and HC Jagdish Chand. It took about half an hour for conducting the checking of the vehicle. He denied that the he changed the figure in Ruka Ext. - 10 - PD and also in the NCB forms. Rest of the defence is denied. 20. PW2 Jagdish Chand in cross-examination stated that he did not remember the time when the police party had left Police Station Kullu. He stated that the Police party did not stay any where between the place of occurrence and Kullu Police Station. They reached the spot around 2 a.m. When the vehicle in question came; they were conducting the traffic checking. He stated that the driving license was only document shown by appellant Ashok Kumar. During the course of checking, appellant and his co-accused were asked to alight from the vehicle. He stated that the polythene envelop was kept between the legs of accused Sandeep Kumar. It was checked out side the vehicle, which was carried by Sandeep. S.I. Manohar Lal suspected some contraband therein. After recovery of the charas, vehicle was also checked which took about 5/7 minutes. Thereafter samples and charas were separated and sealed separately. He also stated that he carried Ruka from the spot and handed it over to SHO Joginder Singh. PW1 Constable Shyam lal also made the similar version. - 11 - 21. PW3 SI/SHO Joginder Singh lent corroboration to their version. He specifically stated that the case property was produced before him. He re-sealed the same with seal impression ‘T’ which was put on each of the parcels. He also took samples of the seal separately on Ext. PJ. He filled- in the relevant column of NCB forms in triplicate. He testified that the sample of seal along with NCB forms and case property were deposited with MHC Roop Singh to deposit it in the Mankhana at 12.50 p.m. He also stated that the case property remained in tact in his custody. 22. PW8 M.H.C. Roop Singh affirmed the above position. He categorically stated that on 27.1.2007 PW3 S.I. SHO Joginder Singh had deposited sealed parcels along with the aforesaid documents, photocopy of FIR, seizure memo and other connected documents with him. He proved its entry in Malkhana Register, copy of which is Ext. PO. He categorically stated that each of the parcels were sealed with four seal impression ‘A’ and four seals impressions of ‘T’. He also stated that all these documents and one of the sample parcels were sent through Constable Jai Kishan to FSL Junga vide RC No. 16/07 (Ext. PP) for analysis. In cross- - 12 - examination he stated that remainder of the contents of the samples after analysis was received in police Station, Kullu, but its seal impressions were not sent back. He specifically denied that the impression of seal ‘A’ and ‘T’ were not sent to Junga for comparison. 23. PW4 Jai Kishan testified that sample parcel along with sample seals and NCB forms in triplicate were handed over to him vide RC No. 16/2007. Seals were intact. He deposited it on 29.1.2007 to the Laboratory and handed over it to MHC Roop Singh. Suggestions contrary to it in his cross-examination were denied. 24. Ext. PP is road certificate wherein samples along with documents find mention. Receipt of the Laboratory is also there on the reverse side of it (Ext. PQ). Samples were received on 29.1.2007 along with documents mentioned therein. This fact is also clear from the report of the examiner Ext. PM wherein the description of the sample parcel has been clearly mentioned and there is also a reference to the effect that sample parcel was received through constable Jai Kishan which was found in-tact and its seals tallied with the seal impression on NCB form No. 1. - 13 - 25. The form NCB-1, as already stated above, bears the facsimiles of both seals used one at the time of recovery and another at the time of resealing by PW3 aforesaid. Therefore, in my opinion, on critical analysis, I find that from the time of its recovery till examination by the forensic Science Laboratory, link is complete and the result of analysis confirmed that the sample contained resin of cannabis plant to the extent of 49.37% WW which on the percentage comes out to be 974.74 grams in the whole recovered stuff, which is less than the commercial quantity. 26. To appreciate the arguments of the learned counsel for the appellant, it shall be relevant to mention here that the incident in question had taken place in the month of January, 2007 and the witnesses were examined in this case after about seven months. The minute details with respect to the starting time from the Police Station to various other places and then leading to the place of occurrence by the police party is not a material contradiction which could shake the foundation of the prosecution case. It was not the only case where police party had proceeded on patrolling and recovered the offensive material. It is a matter of - 14 - common knowledge that such type of incidents and official duties assigned to police are a matter of routine in Kullu and we cannot expect from them minute details, when examined in Court. 27. In the instant case all the official witnesses have unequivocally testified that the vehicle in question was intercepted by them at Chila-aage (Chiladhar) at Manikaran Kenchi Mour at 5 a.m., which was driven by appellant Ashok Kumar and his co-accused Sandeep Kumar was sitting besides him. The said recovery was effected from them. Rajinder Kumar was disclosed by them as the owner of the said vehicle. He was examined in the trial court as PW10. He stated that he had purchased the vehicle aforesaid from Munish Ahmad Ansari by way of affidavit. He specifically stated that he had employed Ashok Kumar appellant as driver to whom he also identified during the trial of this case. He also stated that on 24.1.2007 said vehicle was being driven by the appellant and on 27.1.2007, he had received the message from Kulllu that this vehicle was impounded in a case. He further testified that said vehicle was not plied as taxi. He denied the suggestion of the defence that the appellant was not employed as a driver by him. He categorically - 15 - denied that this vehicle was impounded by the police being unclaimed. 28. The defence raised by the appellant could not be probablised. Minor discrepancies about the recovery of the polythene envelop from the possession of the appellant and his co-accused that it was Manohar Lal Inspector to whom it was handed over by Sandeep Kumar and another witness saying that it was Sandeep Kumar who took it out is of no consequence, in view of the fact that the charas packet was recovered from the said vehicle which was between the legs of Sandeep Kumar co-accused. Appellant Ashok Kumar and his accomplice both are from the State of Haryana. They did not produce any ticket or witness that they were traveling in the Bus nor this defence was put to the Investigating Officer that tickets were handed over by them to him which were withheld. No malice or ill-will has been imputed by them to the Police. There is no cogent reason as to why unclaimed charas alleged to have been found in the abandoned vehicle was planted to them. Although there has been cutting in the NCB forms and the Ruka with respect to the timings but it is also of no consequences as all the witnesses have testified in - 16 - one voice about the date and timing of the recovery of the charas from the possession of the appellant and his co-accused 29. Learned trial Court took note of the inconsistent pleas one put in the cross examination of the witnesses and another in their statements recorded under Section 313 of the Code of Criminal procedure. 30. Therefore, in the light of the above discussion, learned trial court rightly held the appellant guilty of the offences charged and in my considered opinion made no mistake in applying the judgment in Dharampal’s case reported in Latest HLJ 2007 (HP) 827 while convicting him for quantity lesser than the “commercial quantity” as per the percentage of resin found in the recovered stuff. 31. In so far as sentence is concerned, it appears to be a little bit on the higher side. The interest of justice would be met in case the sentence imposed by the trial court is modified to the extent that the appellant shall undergo rigorous imprisonment for a period of seven years instead of nine years and to pay a fine of Rs.60000/- instead of - 17 - 90,000/- for the offences charged without disturbing default clause. Ordered accordingly. 32. Thus appeal filed by Ashok Kumar is partly allowed to the above extent with modification in sentence. 33. In Criminal Appeal No. 652/2008 Rajinder who was a prosecution witness; and claimed himself to be the owner of qualis vehicle but, was not a registered owner but stated to have purchased it from the registered owner, named therein, on an affidavit. Apparently, while ordering the confiscation of the said vehicle, learned trial court did not issue any show-cause notice to him affording him an opportunity as to why said vehicle be not confiscated to the State. 34. Mr. Anup Chitkara, learned counsel for the appellant argued that there has been breach of provision of Section 60 (3) of the Act therefore, the order of confiscation is bad in law. In my opinion, the learned counsel is absolutely right in his submission. 35. Section 60 of the Act deals with the Liability of illicit drugs, substances, plants, - 18 - articles and conveyances to confiscation. Sub section (3) thereof reads as under:- “(3) Any animal or conveyance used in carrying any narcotic drug or psychotropic substance, or controlled substances or any article liable to confiscation under sub- section (1) or subsection (2) shall be liable to confiscation, unless the owner of the animal or conveyance proves that it was so used without the knowledge or connivance of the owner himself, his agent if any, and the person-in-charge of the animal or conveyance and that each of them had taken all reasonable precaution against such use.” 36. As already stated above, appellant Rajinder Kumar was not an accused but was cited as a prosecution witness. He was not afforded any opportunity in terms of the aforesaid Section to prove that the vehicle is question was used without his knowledge etc. or that he or his agent had taken all reasonable precaution against such use. It is a settled proposition of law that nobody can be condemned unheard. The party which would ultimately be adversely affected by the order of the Court essentially deserves to be heard, which was not done in this case. Infraction thereof renders such an order indefensible. Accordingly, order of confiscation of the qualis vehicle (HR-6J-9458) to the State, passed by the learned trial Court vide its - 19 - judgment in Criminal case No. 23/2007 dated 17.6.2008 is liable to be set aside. Thus ordered accordingly. The case is remanded to the learned trial Court to this limited extent, with a direction that learned trial Court shall issue show-cause notice to appellant PW10 Rajinder or any other person, including the registered owner who appears to be entitled for the possession of the said vehicle and after affording reasonable opportunity of being heard shall decide the matter in accordance with law. 37. Parties i.e., PW10 Rajinder appellant and the State Prosecutor are hereby directed to be present before the learned trial court on 4.6.2010 . 38. In result, Criminal Appeal No. 25 of 2009 filed by Ashok Kumar while maintaining his conviction is partly allowed modifying the sentence as aforesaid. The learned trial Court is directed to send a modified warrant forthwith to the Superintendent Jail concerned in tune with this judgment. 39. Whereas appeal No. 652/2008 filed by Rajinder Kumar is allowed to the extent as aforesaid. - 20 - Record of the learned trial Court be returned forthwith. May 27 , 2010 (Surinder Singh),J (cm)