IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.341 of 2007. Decided on: November 13, 2009. _______________________________________________________ Som Nath. ……..Appellant. Versus State of H.P. ……..Respondent. Coram Hon’ble Mr. Justice Surjit Singh, J. Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? For the appellant : Mr. Lalit Sharma, Advocate. For the respondent : Mr. Ramesh Thakur, Asstt. Advocate General. ____________________________________________________ SURINDER SINGH, J (Oral): The appellant was tried and convicted for the offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 in short “the Act”, by the learned Special Judge, Kullu for allegedly keeping in possession 3 Kgs. of Charas (Cannabis plant), and sentenced to undergo imprisonment for a period of ten years and to pay a fine of Rs. 1 lac, in default of payment of fine, he was further ordered to undergo imprisonment for a period of one year. Whether reporters of the Local papers are allowed to see the judgment? Yes. - 2 - In brief, the prosecution case can be stated thus. On 5th November, 2005, at about 2.15 a.m. PW-2, ASI Biri Singh was on detection of crime alongwith some police officials and were patrolling in the official vehicle No.HP-34-0162 in Kullu town. When the police vehicle, in which they were patrolling, reached near Bhootnath temple half kilometer away from Jia road, they parked it on the side of the road and at about 4.15 a.m. spotted the appellant coming from the opposite direction. Police stopped him and asked about his identity. He disclosed his name and address. The appellant was found carrying a black coloured bag hung on his shoulder. When asked about its contents, he disclosed that he was carrying Charas in the bag. ASI Biri Singh tried to get independent witnesses through, PW-1 Sunder Lal and Head Constable Ranjit Singh but they could not find anyone in the wee hours. ASI Biri Singh aforesaid associated Head Constable Ranjit Singh and Constable Sunder Lal as witnesses to the search. The appellant was brought inside the vehicle. The Investigating Officer rendered himself to search in the presence of the witnesses by the appellant, but nothing incriminating was found from his possession. - 3 - Thereafter, the bag which was carried by the appellant was searched and during the search a pink coloured polythene bag containing 3 Kgs. Charas in round shape was recovered. ASI Biri Singh drew two samples of 25 grams each from the recovered stuff and sealed in a separate parcel with seal impression “X”. The remaining bulk was kept in the polythene bag and thereafter it was also sealed in the same bag with the same seal. The sample of seal was taken separately on the piece of cloth Ext.PW-1/A. The NCB forms in triplicate were filled in and one of such forms is Ext.PW-2/B. The seal after its use was handed over to Head Constable Ranjit Singh. The case property was taken into possession vide seizure memo Ext.PW-1/B. The appellant was informed of the offence committed by him in writing vide memo Ext.PW-1/C. He was arrested. Ruka Ext.PW-2/C was sent for the registration of the case through Constable Sunder Lal, on the basis of which formal FIR Ext.PW-3/A was registered in Police Station, Kullu. The Investigating Officer aforesaid prepared the site plan Ext.PW-2/B with respect to the place of recovery. - 4 - The case property and the appellant were produced before PW-3 SI/SHO Joginder Singh. The case property was resealed by the SHO with seal impression “A”. The sample of seal Ext.PW-3/C was also taken on a piece of cloth. The relevant columns of the NCB forms were also filled in by the said SHO. Thereafter the case property including the samples of seals and NCB forms in triplicate were deposited with PW-6 MHC Roop Singh in the Malkhana. ASI Biri Singh prepared the special report Ext.PW-2/A and handed over to Dy.S.P. Headquarters Prem Chand. On 1st December, 2005, a sample parcel alongwith samples of seals used by the Investigating Officer as well SI/SHO, NCB forms in triplicate and other documents were handed over by MHC Roop Singh to PW-4 Constable Pratap Singh vide RC No.188/05 (Ext.PW-6/B) for its analysis in CTL Kandaghat. On 2nd December, 2005 the sample of seals alongwith aforesaid documents were deposited by the said Constable in the Laboratory and obtained the receipt Ext.PW-4/A. The sample was analysed at CTL, Kandaghat. Vide report Ext.PA, the resin contents of Cannabis plant to the extent of 36.05% was found in the sample which is a content of Charas. After recording the statements of the - 5 - witnesses and on completing the Challan, the case was presented in the Court for trial of the appellant. The appellant was charge-sheeted for the aforesaid offence, to which he pleaded not guilty and claimed trial. To prove its case, prosecution examined its witnesses and the appellant was also examined under Section 313 of the Code of Criminal Procedure. He denied the circumstances put to him and took up the stand that on 4th November, 2006 a day before the alleged incident, after seeing the Dussehra festival, he was returning to his home. When he reached little short of Bhootnath temple, he noticed some persons being chased by the police and a bag was lying nearby. The police picked up the said bag and enquired from him about its ownership. The police asked the appellant to accompany them to the Police Station for his enquiry and when he reached Police Station he was locked up and a false case was registered against him. Next morning, he was asked to put his signatures on certain documents, then he came to know about his false implication in the case. To substantiate his version, he examined DW-1 Heem Chand. The learned trial Court did not believe the defence version, but found the prosecution case as - 6 - spoken by its witnesses, reliable and worth inspiring confidence, as such, convicted and sentenced the appellant as aforesaid, which has been challenged in this appeal. We have heard learned counsel for the parties and have carefully reappraised the evidence on record. PW-2 ASI Biri Singh, while corroborating the case of the prosecution testified that on 5th November, 2005 at 4.15 a.m. the police party spotted the appellant coming towards their vehicle, which was parked on the side of the road. The police party was sitting inside vehicle. The driver was asked to switch on the lights. The appellant was stopped and his identity was asked, on which he disclosed his name and address. The appellant was carrying a black coloured bag, Ext.P-2, on his shoulder. On being asked as to what was there in the bag, the appellant disclosed that it was Charas. He further stated that in order to procure the independent witnesses, he had sent Constable Sunder Lal and Head Constable Ranjit Singh, but they did not find anyone. On this, he associated both the aforesaid official witnesses as witnesses to the Charas and recovered the Charas from the possession of the appellant, as aforesaid, from his bag which was - 7 - wrapped in a polythene bag Ext.P.3. He further testified that he drew two samples of 25 grams each from the recovered stuff and one of such sample parcels was identified by him during the trial as Ex.P- 5, which was sealed on the spot alongwith bulk and the second sample separately. He further stated that he applied the seal producing the impression “X” on each of the parcels. The remaining bulk was kept in the polythene bag Ex.P3 and then sealed in the bag of the appellant itself with the same seal. He also proved sample of seal Ext.PW-1/A with respect to the seal used by him on the spot. He also testified that NCB forms in triplicate were filled in by him and one of such form is Ext.PW-2/A. He further stated that the seal after its use was handed over to Head Constable Ranjit Singh and the case property was taken into possession vide recovery memo Ext.PW-2/B in the presence of the aforesaid witnesses. The grounds of arrest were also informed to the appellant in writing and to this effect memo Ext.PW-1/C was prepared. He further stated that at 7.20 a.m. he produced the case property and the appellant before the PW-3 SI/SHO Joginder Singh. PW-1 Constable Sunder Lal lent corroboration to his statement and PW-3 SI Joginder Singh though stated that on 5th November, 2005 at 7.20 p.m. the - 8 - case property was produced by ASI Biri Singh for resealing. He resealed the case property with seal producing the English letter ‘A’ and took the sample of seal separately on the cloth Ext.PW-3/C and filled up the relevant columns of NCB forms and thereafter handed over it to MHC aforesaid for its deposit in the Malkhana at 7.45 p.m. on the same day, but with respect to the time learned Public Prosecutor cross- examined him after seeking the permission of the Court, then corrected himself that the Ruka was received by him at 6.45 a.m. and similarly FIR was registered at 7.15 a.m. and the case property after resealing was deposited by him with MHC Roop Singh. He further explained that the word “p.m.” used by him in the examination-in-chief was an inadvertent mistake. In his cross-examination he denied that the case property was not produced before him nor the same was deposited in the Malkhana. PW-6 MHC Roop Singh has very categorically stated that the case property consisting of three parcels duly sealed with seal impressions “X” and “A” alongwith NCB forms in triplicate and other relevant documents were deposited with him by SI/SHO aforesaid to which he entered in the Malkhana register at Sr. No.261 and proved its photocopy as - 9 - Ext.PW-6/A being correct as per original. He also stated that on 1st December, 2005, a sample parcel in this case was sent through Constable Pratap Singh for its examination in CTL, Kandaghat alongwith NCB forms in triplicate vide RC Ext.PW-6/B. After its deposit, he produced the receipt Ext.PW-4/A on the reverse of the RC and further stated that the case property was not tampered with by anyone and he filled in Column No.12 of the NCB forms before sending the sample to CTL, Kandaghat. PW-4 Constable Pratap Singh testified having taken the sample parcel duly sealed with seal impressions of seals “X” and “A” alongwith the aforesaid documents vide RC No.188/2005 and after its deposit in the Laboratory on 2nd December, 2005 he obtained the receipt Ext.PW-4/A. He did not tamper with the sample parcel in any manner. The special report Ext.PW2/E was sent by the Investigating Officer to the Addl..S.P., Kullu, which was received in his office. PW-5 HC Subhash Chand stated that after perusal Shri Sonam Chhopal, Addl. S.P. handed over the special report to him for making entry in the relevant register, which fact has not been disputed in the cross-examination by the appellant. - 10 - Although, there is a reference by way of suggestions made to PW1 Sunder Lal and also to the Investigating Officer Biri Singh, in their cross- examination that they were chasing some Sadhus as alleged with respect to the bag in question and that this case was wrongly fabricated upon him. But they denied these suggestions. Further we find that the statement of DW1 is not worth inspiring confidence to cause a dent in-to the prosecution case. If the appellant was wrongly implicated in this case, it is not understood, as to why he did not complain to the Magistrate before whom he was produced at the very first occasion. He also did not make any representation to the higher authorities for enquiring about planting the case against him. Further the appellant did not offer any explanation or cogent reason as to what malice police was having against him to implicate him in a false case. Therefore, on reconsideration of the matter, we find that his defence was rightly rejected by the learned trial Court. Thus, on reappraising the evidence of the prosecution with care and caution, we do not find anything which could impel us to hold that the appellant was falsely implicated in this case. We also do not find any material contradictions in the - 11 - statements of the prosecution witnesses, which make the case of the prosecution a suspect. For the aforesaid reasons, we do not find any force in this appeal, as such dismissed. (Surjit Singh) Judge (Surinder Singh), Judge. November 13, 2009. (rc)