Gian Chand vs State of Himachal Pradesh

Kuldip Singh, J.—The judgment dated 25.3.2013 in Sessions trial No. 29 of 2011 (RBT No. 89 of 2012) by learned Special Judge, Kullu, convicting the appellant u/s 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ''Act'') and sentencing him to undergo rigorous imprisonment for nine years and to pay fine of Rs. 90,000/-, in default of payment of fine, to further undergo imprisonment for six months, has been assailed by the appellant in the appeal. The prosecution case, in brief, is that on 18.5.2011 at about 11.30 a.m. PW-9 ASI Ram Lal, H.C. Ses Raj, H.C. Raj Pal, HHC Bhag Singh, C. Narender Kumar in vehicle No. HP-34A-0213 alongwith driver Raj Kumar were at Nakka at place Bhiyur near Larji on Sainj-Larji road. The police noticed the appellant coming on foot from Sainj side with a rucksack. On seeing the police, the appellant got perplexed and tried to escape. This act of the appellant created suspicion which led to overpowering of appellant by the police. The appellant could not give satisfactory reply on questioning. It was an isolated place and no independent witness was available at the spot, therefore, PW-2 C. Narender and HC Raj Pal were associated as witnesses and in their presence the appellant was questioned. The police suspected some contraband in the possession of appellant, therefore, appellant was apprised about his legal right to be searched either before a Magistrate or gazetted officer vide memo Ex. PW-2/A. The appellant opted to give his search before the Magistrate.

The appellant alongwith rucksack carried by him and the witnesses were taken to Banjar before PW-3 Kirpa Ram, Executive Magistrate, who was apprised about the facts of the case. PW-9 ASI Ram Lal gave his personal search vide memo Ex. PW-2/B before the Executive Magistrate but nothing illegal was found on his person. Thereafter the personal search of appellant was carried, however, no incriminating material was recovered from his personal search. On checking rucksack bag carried by the appellant, one red coloured bag was found in the rucksack. On opening red coloured bag, one kilogram ''Charas'' was recovered from it.

The Charas recovered was re-packed and sealed with seal impression ''D'' and sample seal Ex. PW-2/C was drawn. Ex. PW-4/E, NCB form was filled. The seal after use was handed over to PW-2 C. Narender Kumar. The case property was taken into possession vide memo Ex. PW-2/D. The re-packed Charas was sealed in parcel Ex. P-1. The signatures of witnesses were taken on relevant memos. The ruqa Ex. PW-4/A was sent through PW-2 C. Narender Kumar and on that basis PW-7 SHO Surender Pathak recorded FIR Ex. PW-4/B, who made endorsement on ruqa. The file was handed over to PW-2 C. Narender Kumar for delivery to PW-9 ASI Ram Lal, Investigating Officer. The statements of witnesses were recorded, photographs were taken. The appellant vide memo Ex. PW-9/C was apprised about grounds of arrest and information qua his arrest was given. The personal search of appellant was taken vide memo Ex. PW-9/D. The case property alongwith appellant was produced before PW-7 SHO Surender Pathak, who re-sealed the parcel with seal impression ''T''. He filled in relevant columns of NCB form. The case property etc. were deposited with MHC Banjar, who made entry in the relevant register, the abstract of which is Ex. PW-4/C.

On 19.5.2011 PW-9 prepared special report Ex. PW-1/A and submitted the same to Dy. S.P. through HHC Bhag Chand, the relevant entry to this effect was made in the concerned Register. PW-4 MHC Ramesh handed over the case property to PW-6 C. Bahadur Singh alongwith sample seal, NCB form and other relevant documents with a direction to deposit the same at FSL Junga vide road certificate Ex. PW 4/D after filling column No. 12 of NCB form. PW-6 after depositing the case property at FSL Junga, deposited receipt and road certificate with MHC. The case property was examined at FSL, Junga and vide report Ex. PW-7/B found to be charas with quantity of resin 25.06%w/w.

On completion of investigation, the challan was submitted in the Court, charge was framed u/s 20 of the Act against the appellant, who pleaded not guilty and claimed trial. The prosecution has examined nine witnesses and produced some documents. The statement of appellant was recorded u/s 313 Cr.P.C. He denied the prosecution case and projected the case that he has been falsely implicated and no recovery was made from him. After conclusion of trial, the appellant was convicted and sentenced as noticed above, hence appeal by the accused.

I have heard learned counsel for the parties. The learned counsel for the appellant has submitted that the appellant has been falsely implicated, no recovery has been made from the appellant. The story projected by the prosecution is not only false but unbelievable. The prosecution did not join the independent witnesses though available in the vicinity. There is no explanation why the appellant was allegedly produced before PW-3 Kirpa Ram even though other Executive Magistrates were available nearby. On handing over of seal, the prosecution has led contradictory evidence, nor seal which was allegedly used for sealing the contraband after alleged recovery was produced in the Court in evidence. The prosecution story does not inspire confidence. The appellant has been made scape-goat. There is no reliable link evidence. The Court below has misconstrued, misinterpreted the evidence. The sentence imposed is excessive. The learned Additional Advocate General has supported the impugned judgment which according to him is based upon proper appreciation of evidence.

PW-2 C. Narender Kumar, PW-3 Kirpa Ram Bhardwaj and PW-9 ASI Ram Lal are the witnesses of recovery of contraband, their statements are most important to appreciate the contentions raised on either side. PW-1 H.C. Nirat Singh was the Reader to Dy. S.P., Kullu. He has stated that special report Ex. PW-1/A was handed over to him by Dy. S.P. Ram Lal Bansal and he entered the report in the relevant register at serial No. 66, the abstract of which is Ex. PW-1/B. PW-4 H.C. Ramesh Chand was MHC, Police Station, Banjar at the relevant time. He had received ruqa Ex. PW-4/A sent by PW-9 ASI Ram Lal through PW-2 C. Narender Kumar and there upon he registered FIR Ex. PW-4/B. He also received the case property from PW-7 Inspector Surinder Pathak, who was SHO, Police Station, Banjar and entered in the Malkhana Register at serial No. 62, the abstract of which is Ex. PW-4/C. PW-4 had also sent the case property to FSL, Junga through PW-6 HHC Bahadur Singh vide R.C. Ex. PW-4/D, who handed over the receipt to him on his return. He had also completed the column No. 12 of NCB-I form Ex. PW-4/E. He has also stated that the case property remained in his safe custody. PW-6 HHC Bahadur Singh has corroborated the statement of PW-4 that the case property was handed over to him vide RC Ex. PW-4/D and he deposited the case property with FSL, Junga. The case property remained with him in safe custody.

PW-7 Inspector Surender Pathak was the SHO, Police Station, Banjar at the relevant time. He has stated that on 18.5.2011 PW-9 ASI Ram Lal produced parcel Ex. P-1 stated to be containing a rucksack bag, cloth bag and one KG Charas which was sealed with six seals of seal impression ''D''. PW-9 also produced sample seal ''D'', NCB-I form in triplicate. PW-7 re-sealed parcel Ex. P-1 with four seals of seal impression ''T''. He has stated that seal impression ''T'' Ex. PW-7/A was separately drawn. The relevant columns of NCB-I form Ex. PW-4/E were filled. The case property alongwith relevant documents were deposited with MHC. On receipt of FSL report Ex. PW-7/B, the challan was prepared and put up in the Court. PW-8 HHC Sobha Ram has proved Rapat Nos. 16 Ex. PW-8/A, 39 Ex. PW-8/B and 40 Ex. PW-8/C.

Now reverting to the statements of PW-2, PW-3 and PW-7, PW-2 has stated that on 18.5.2011 ASI Ram Lal, HC Ses Raj, HC Raj Pal and HHC Bhag Chand were patrolling and had placed naka at Bhiyur. At about 11.30 a.m. one person came on foot from Sainj side. On seeing the police vehicle accused tried to run away. The accused was carrying an olive green colour bag on his shoulder. He was nabbed at a distance of 20 steps. On inquiry, he disclosed his name Gian Chand, he could not give satisfactory reply as to why he was running. It was secluded place.

PW-2 also stated that the Investigating Officer associated him and another as witnesses. The accused was apprised about his legal right of search before the Magistrate or Gazetted Officer. The accused desired to be searched before the Magistrate vide memo Ex. PW-2/A. The accused was taken in the official vehicle before the Executive Magistrate, Banjar, who was apprised about the memo Ex. PW-2/A which was countersigned by the Executive Magistrate. ASI Ram Lal gave his personal search to the accused vide memo Ex. PW-2/B in the presence of Executive Magistrate but nothing objectionable was recovered from him.

PW-2 further stated that the search of the accused was conducted before the Executive Magistrate, but from his personal search nothing was recovered. Thereafter his bag was searched and from the bag a red coloured bag was recovered which was tied with knot. On opening the knot, black coloured substance stick shaped wrapped in the polythene was recovered. On checking by breaking and smelling the substance was found Charas and on weightment, it was found one KG Charas. The photographs were taken. The Charas was packed in the same condition and sealed in a parcel. The Investigating Officer filled the NCB-I form in triplicate. The Investigating Officer prepared the sample seal Ex. PW-2/C on separate piece of cloth. The seal was handed over to the witness. The charas was taken into possession vide memo Ex. PW-2/D. He and HC Raj Pal signed as attesting witnesses of all the memos prepared by the Investigating Officer. The Investigating Officer prepared ruqa which was handed over to the witness, who in turn, handed over the same to MHC, Police Station, Banjar. He identified the bag Ex. P-2, red coloured bag Ex. P-3, Charas Ex. P-4 and polythene wrappers Ex. P-5 which were recovered from the accused.

In cross-examination, PW-2 has stated that he has not brought the seal but he can produce the same which is in his safe custody. He denied that the seal was not handed over to him by the Investigating Officer. He denied that he had handed over the seal to MHC, Police Station, Banjar. The residential houses of HPSEB are at a distance of 400 meters from Larji. He answered in affirmative that there is no village upto Bihali and Bihyur is within the jurisdiction of Police Post, Sainj. The Investigating Officer did not make efforts to associate independent witnesses from village Larji. He admitted that there is Tehsildar at Aut. He denied that accused was waiting for the bus at Banjar Bus Stand where the police found one unclaimed bag Ex. P-2 near the tea-shop at Bus Stand. He denied that false case has been foisted on the accused. There is office of Tehsildar at Bali Chowki which is on the way to Banjar.

PW-3 Kirpa Ram Bhardwaj, Tehsildar is an important witness. He has stated that the backpack of accused was checked which was containing red coloured carry bag in which black substance stick shaped wrapped in polythene was found. On weighing, it was found to be 1 kg. He told that it was charas. The police had taken photographs. The bag and backpack were sealed in a parcel of cloth and parcel was sealed with six seals of seal ''D''. The sample seal was also prepared on a separate piece of cloth, seizure memo Ex. PW-2/D was prepared over which he made endorsement Ex. PW-3/A. The accused affixed his thumb impressions on the memo and on sample seal. The backpack Ex. P-2, red coloured bag Ex. P-3, Charas Ex. P-4, polythene wrappers Ex. P-5 are the same which were recovered from the accused. He was cross-examined but nothing favourable to the appellant could be extracted in cross-examination. PW-9 ASI Ram Lal, Investigating Officer corroborated the statements of PW-2 and PW-3. He has also stated that NCB-I forms in triplicate were filled on the spot, one of which is Ex. PW-4/E, sample seal impression is Ex. PW-2/C. The seal after use was handed over to PW-2 C. Narender Kumar. The proceedings were photographed and photographs are Ex. PW-9/A-1 to Ex. PW-9/A-6. In cross-examination, he has denied that the seal after use was handed over to C. Narender Kumar. He has also denied that the case property was tampered with in connivance with MHC and SHO.

Ex. PW-1/A is the report u/s 57 of the Act. Ex. PW-1/B is the extract of register in which at serial No. 66 on 18.5.2011 the case property has been entered which was received through HHC Bhag Chand in FIR No. 53 of 2011. Ex. PW-2/A is the consent memo of appellant, thumb marked by appellant in presence of PW-2 C. Narender Kumar and H.C. Raj Pal witnesses, it is also countersigned by PW-3 Kirpa Ram, Executive Magistrate, Banjar on 18.5.2011. Ex. PW-2/C is the seal impression ''D'' over a piece of cloth. Ex. PW-2/D is the recovery memo thumb marked by the appellant and witnessed by PW-2 C. Narender Kumar and HC Raj Pal. It bears endorsement Ex. PW-3/A of PW-3 Kirpa Ram, Executive Magistrate, Banjar. PW-4/A is the special report, Ex. PW-4/B is FIR, Ex. PW-4/C is the abstract of register showing the case property entered at serial No. 62 which was handed over to PW-4 HC Ramesh Kumar by PW-7 Surender Pathak, SHO, Ex. PW-4/D is the road certificate, Ex. PW-4/E is the NCB-I form showing that it was resealed with seal impression ''T'' and seal impression ''T'' over a piece of cloth is Ex. PW/7-A. Ex. PW-7/B is FSL report showing actual weight of exhibit 0.990 kg. The quantity of resin as found in the exhibit is 25.06%w/w. It has been opined that exhibit is extract of cannabis and sample of charas. Ex. PW-9/A-1 to Ex. PW-9/A-6 are the photographs of the recovery proceedings and Ex. PW-9/B is the spot map.

It has been argued on behalf of the appellant that the story of the prosecution from the start is unbelievable, doubt has been shown why the appellant should come close to the police and then run away when raiding party was only 20 paces away. In normal circumstance the accused on seeing the police would run away or escape at the first available opportunity. The argument cannot be countenanced, the behaviour of accused depends upon the facts and circumstances of the case. There is no evidence that the appellant noticed the police party from a distance before he decided to run away. Therefore, the prosecution case cannot be suspected to be false merely on the ground that the appellant tried to escape when he was quite close to the police and only then he was nabbed by the police.

It has been submitted that the appellant has been falsely implicated in the case. It has been argued on the basis of the suggestion given to PW-2 C. Narender Kumar that the police had found unclaimed bag Ex. P-2 near tea shop at Bus Stand, Banjar where the appellant was waiting for the bus. In other words existence of rucksack Ex. P-2, red bag Ex. P-3, Charas Ex. P-4 has not been denied by the appellant, he has denied the recovery of these articles and charas from him. He has raised connected argument that independent witnesses were not associated by the investigating agency during investigation. He has also questioned the propriety of involving PW-3 Kirpa Ram, Executive Magistrate, Banjar in the investigation instead of other Magistrates.

Ex. PW-8/A indicates that PW-9 ASI Ram Lal and others proceeded in official vehicle No. HP-34A-0213 for patrolling and nakabandi towards Larji. According to investigating agency, the offence was committed within the jurisdiction of Police Station, Banjar. As per the spot map Ex. PW-9/B, the police party was on Sainj Larji road when appellant was over-powered. Larji has been shown at a distance of two kilometers where the police party had placed naka according to spot map. It has come in the prosecution evidence that the place where appellant was over-powered was secluded. In spot map Ex. PW-9/B, no house or abadi has been shown nor it is the case of the appellant that in spot map Ex. PW-9/B true spot position has not been shown. PW-2 C. Narender Kumar and PW-9 ASI Ram Lal have stated that no efforts were made to associate independent witnesses from Larji. It has come in the statement of PW-2 that residential houses of HPSEB are at a distance of 400 meters from Larji. The fact remains that the independent witnesses were not available on the spot.

The appellant had opted to be searched in presence of Magistrate as per consent memo Ex. PW-2/A. Therefore, no fault can be found in the wisdom of the investigating officer to take to the appellant to the Executive Magistrate instead of bringing independent witnesses from Larji. Similarly, there is no fault in taking the appellant to Executive Magistrate, Banjar having jurisdiction over the area where as per the investigating agency the offence was committed instead of taking the appellant to other Executive Magistrates. There is no rule of law that in absence of independent witnesses, the statements of police witnesses cannot be relied and conviction cannot be based on such statements. The only pre-caution is that in such situation the statements of police witnesses are to be appreciated and considered with extra care. The statements of PW-2, PW-3 and PW-9 inspire confidence. No legally acceptable reason has been pointed out to disbelieve these witnesses. Simply these witnesses are police officials or Executive Magistrate is no ground to discard their statements. PW-2, PW-3 and PW-9 have completely proved the case of the prosecution that 1 Kg. charas wrapped in polythene papers was recovered from the conscious possession of the appellant from red bag Ex. P-3 which was inside the rucksack Ex. P-2 which appellant was carrying when he was overpowered by the police.

PW-3 Kirpa Ram has counter-signed the consent memo Ex. PW-2/A, recovery memo Ex. PW-2/D has been proved by PW-2 C. Narender Kumar. On recovery memo Ex. PW-2/D the endorsement Ex. PW-3/A has been made by PW-3. The Chemical Examiner report Ex. PW-7/B indicates that the recovered stuff from the appellant was extract of cannabis and sample of charas. The actual weight of the exhibit as per Ex. PW-7/B was 0.990 Kg. The link evidence has also been proved by the prosecution.

The learned counsel for the appellant has made an attempt to create suspicion by pressing the argument that seal used by PW-9 for sealing has not been produced. There is contradiction in the statements of PW-9 and PW-2 regarding handing over of the seal. He has submitted that as per PW-2 the seal was handed over to him but PW-9 in cross-examination has stated that seal was not handed over to PW-2. The argument has been addressed that possibility cannot be ruled out of tampering of sample in absence of definite and positive evidence regarding whereabouts of the seal. The argument is nothing but an argument of frustration. PW-2 C. Narender Kumar has stated that seal was handed over to him by the Investigating Officer but he did not produce the seal in the Court, but he clearly stated that he could produce the seal. PW-9 in his examination-in-chief has also stated that seal was handed over by him to PW-2 C. Narender Kumar but in cross-examination it has come that he did not hand over the seal to PW-2.

The statement of PW-9 is to be read as a whole. The appellant cannot take advantage of the stray statement of PW-9 in the cross-examination when he has stated that he has not handed over the seal to PW-2. It was incumbent upon the appellant to get clarification from PW-9 which statement on handing over of seal given by him in examination-in-chief and cross-examination was correct. But the appellant for the reasons best known to him did not get the clarification from PW-9. In any case, there is nothing on record that in fact tampering was made after recovery and sealing of the contraband. The trial Court has properly appreciated the evidence and rightly convicted the appellant. The sentence imposed is also in consonance with the gravity of offence. No fault can be found with the impugned judgment. In view of above, the appeal fails and is accordingly dismissed.