Gulam Rasool vs State of Himachal Pradesh

Lokeshwar Singh Panta, J.—This appeal is directed against the judgment and order dated 15.12.1999 passed by Sessions Judge, Chamba in Sessions Case No. 16 of 1998 convicting the Appellant-accused u/s 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ''the Act'') and sentencing him to undergo rigorous imprisonment for 10 years'' and to pay a fine of Rs. one lakh and in default of payment of fine to undergo six months simple imprisonment. In order to appreciate the controversy we are herewith giving essential facts:

The accused was put on trial for the offence punishable u/s 20 of the Act. As per the prosecution story on 18.1.1998 the accused was travelling in Himachal Pradesh Transport Corporation (for short HRTC) bus No. HP-37-0330 from Chamba to Mataur. At about 11 a.m. the said bus reached at a place known Drada where it was stopped,by Head Constable Satpal (PW-7) for traffic checking. While checking the bus, PW-7 noticed that the accused tried to slip away whereupon he entertained a suspicion against the accused and apprehended him. Dalbir Singh (PW-5) and Dev Raj (PW-6) driver and conductor respectively of the bus were associated by PW-7 in the investigation of the case. PW-7 infor med the accused that his personal search had to be carried out and if he so desired he could get himself searched befor e any gazetted officer or befor e any Magistrate. The accused offered to be searched befor e the Police. A search memo Ext. PE was prepared and then in the presence of P Ws 5 and 6, his search was conducte. On search Muffler Wrapped around the accused''s waist was found untied from which a leather bag was found. On opening of the leather bag it contained a polythene bag and on opening the same ''Charas'' in the shape of ''Golas'' (small balls) and ''Battles'' (small sticks) was recovered. On weight of the recovered ''Charas'' it was found 2 kgs. Two samples of 25 grams each were taken and sealed into two separate parcels and thereafter the sample parcels so obtained and the remaining ''Charas'' were sealed with seal impression ''K'' and then the seal was handed over to PW-6. Thereafter, recovery merrio (Ext. PF) of taking into possession ''Charas'' was prepared after obtaining signatures of the accused and the witnesses P Ws 5 and 6 thereon. The accused was also infor med about the ground of arrest by memo Ext PG which was signed by the accused. PW-7 sent ruqua mark Ext. PA to Police Station, Chamba on the basis of which First Infor mation Report Ext. PB was registered at p.m. by Inspector Kishori Lal (PW-l). PW-7 prepared site plan Ext. PJ and the parcel of ''Charas'' together with sample parcels were sent to PW-1 who also sealed the said parcels with his own seal mark ''KL''. He then deposited the parcels with Head Constable Chain Singh (PW-3). PW-7 prepared special report Ext. PD and sent the same to the Superintendent of Police, Chamba which was received in his office on 19.1.1998. PW-despatched the" sample parcels of ''Charas'' through constable Naresh Kumar (PW-2) to the office of Chemical Examiner at Kandaghat. As per the report Ext. PC of the Chemical Examiner the sample analyzed was to be ''Charas''. The accused was also arrested there.

On completion of the investigation, charge-sheet was submitted. The accused pleaded not guilty and claimed to be tried. In the trial Court the prosecution examined as many as seven witnesses. The defence of the accused in his statement u/s 313 Code of Criminal Procedure was that he has been falsely implicated in this case and his signatures were obtained on the documents by the Police under threat. He pleaded innocence. The trial Court on appraisal and scrutiny of the evidence came to the conclusion that the prosecution has proved the offence against the accused beyond reasonable doubt, hence convicted and sentenced the accused as afor esaid.

Being aggrieved, the accused has filed the present appeal challenging the correctness and validity of his conviction and sentence.

Mr. Anup Chitkara, learned Counsel for the accused contended that possibility of sample being tampered with by PW-7, the complainant, cannot be ruled out as the seal bearing impression ''K'' said to have been used by PW-7 remained with him for sufficiently long time. He has taken us through the evidence of PW-7 Satpal. It is the evidence of PW-7 that he had two or three seals of the impression of ''K'', ''S'' and ''T'' respectively and the samples of 25 each were separated and three other parcels sealed with seal impression bearing ''K'' and the seal was handed over to him. PW-6 Dev Raj conductor of the bus stated that seal Mark ''K'' after as handed over to him by PW-7. Admittedly PW-6 not produce that seal in the court. According to learned Counsel the non-production of the seal in Court creates a serious doubt about the fact as to whether any seal was handed over to PW-6 or it was simply shown to have been handed over to him and the possibility of re-opening the parcel and tampering with the contraband by PW-7 befor e samples were handed over to PW-1 could not be ruled out us PW-7 is the complainant in the case and is certainly interested in the success of the case. In support of this submission the learned Counsel relied upon the judgment of the Supreme Court in Gurbax Singh v. State of Haryana (2001) 3 SCC 28 . It is no doubt, true that PW-7 Satpal Singh in his cross-examination has admitted that he got two or three seals of impressions ''K'', ''S'' and ''T manufactured himself made of lead with wooden handle and in the present case the seal bearing impression ''K'' was used by him at the "time of sealing the samples. The case property remained with him up to 5.45 p.m. when it was later on deposited by him with PW-1 who put his own seal ''KL'' on each of the parcel and thereafter deposited all the parcels with PW-3. PW-1 has corroborated the statement of PW-7 that one bulk parcel and two sample parcels sealed with seal impression ''K'' and sample seals were handed over to him by PW-7. On perusal of the FIR Ex t. PB we find that distance between the place where the accused was apprehended by PW-7 and the Police Station is about 26 Kilometres and it is clearly stated by PW-7 that he conducted the investigation of this case on the spot and came to the Police Station, Chamba by bus along with the accused and PW-3. PW-2 Constable Naresh Kumar took one seal parcel which was handed over to him by PW-3 to Chemical Examiner, Kandaghat on 30.1.1998. It is his say that the sample was containing three seals of impression ''K'' and one seal of impression ''KL''. The sample seals were also deposited with the Chemical Examiner along with samples. The parcel remained intact when it was in his custody. According to the report Ext. PC of Chemical Analyser the parcels so deposited contained three seals of ''K'' and resealed with one seal of ''Kl''. On chemical analysis of the contraband it was found to be of ''Charas''. In the teeth of this positive, satisfactory and reliable evidence placed on record it cannot be said that PW-7 tampered with the samples after they were sealed on the spot befor e they were handed over to PW-1 or befor e these were sent to the Chemical Examiner for analysis. The learned trial Court found on the production of the case property in the Court that the samples were having the seal impressions intact and its outer cover was also signed by the witnesses. It has been specifically stated by PW-6 conductor of the bus that the parcel (Ext. P-l) and sample parcel (Ext. P-2) sealed at the spot by PW-7 were the same bearing his signatures on their outer covers. The sample (Ext. PK) also contained the seals impression upon it. The learned trial Court observed that had there been different seals in this case property produced in the court, the same could be easily ascertained by comparing with the seal impression (Ext. PK). On comparison of the case property produced in the Court and the evidence of the witnesses corroborated by the report of the Chemical Analyzer, we are not inclined to accept the contention of the learned Counsel that the seized sample of ''Charas'' was tampered with by PW-7. In Gurbax Singh v. State of Haryana (supra) it was found that the Investigating Officer admitted that seal which was affixed on the muddamal article was handed over to the witness (PW-1) and was kept with him for 10 days and it had also been admitted that the muddamal parcels were not sealed by the officer-in-charge of the police station as required u/s 55 of the NDPS Act. The prosecution did not lead any evidence whether the Chemical Analyzer received the sample with proper intact seals. In those circumstances it created a doubt whether the same samples were sent to the Chemical Analyzer or not. In the present case as stated above PW-1 officer-in-charge of the Police Station Chamba resealed the parcels handed over to him by PW-7 with his seal Mark ''KL'' and the report Ext. PC of Chemical Analyzer corroborates that the sample received by him was proper and seals mark ''K'' and ''KL'' respectively were found intact. therefore e, the ratio of the above said judgment relied upon by the learned Counsel will be of no help to the accused. The other decisions namely,State of Rajasthan v. Copal (1998) SCC 1586 ; Sarla Ahuja Vs. United India Insurance Company Limited, AIR 1991 SC 117; 1993 (2) Crimes 267 , State of Rajasthan Vs. Daulat Ram, Deep Singh v. State of H.P., 1995 (2) Sim. L.C. 256 and State of H.P. v. Fred Robinson, Crl. A. No. 714 of 2000, decided on 30.7.2001 will have no bearing on the peculiar facts and circumstances of the present case as those cases were decided on"their own facts which are different and distinguishable to the facts of the present case.

The learned Counsel next contended that there are contradictions in the statements of P Ws 5, 6 and 7 about the material used for the make of the seal bearing impression ''K'' used by PW-7 at the time of sealing the parcels of the contraband and these contradictions will also create suspicion in the correctness of the prosecution case. It is the evidence of PW-5 that the seal used was long made of rubber and wood whereas PW-6 said that it was of aluminium type and he could not recollect as to what the length of the seat was or what was its shape. PW-7 categorically stated that the seal bearing impression ''K'' used by him in the present case was got manufactured by him made of lead with wooden handle. It is the say of PW-6 that the seal used by PW-7 was of Aluminium which was handed over to him for safe custody but he lost the same lateron and therefore e, could not produce in the court.P Ws 5, 6 and 7 undoubtedly have given different makes of the seal ''K'' used for the purpose of sealing the parcels of contraband but the impressions of the seal have been categorically stated to be of Mark ''K''. The prosecstion case cannot be disbelieved and thrown out on this sole ground that the witnesses have given different material of the make of the seal make ''K'' which in our view is not very significant and material to disbelieve the evidence of these witnesses who have unequivocally testified that seal ''K'' was used by PW-7 for sealing the sample and other parcels. As these discrepancies in their testimony were trivial which do not affect the veracity or the credibility of the prosecution story. The accused has failed to account satisfactorily for the possession of the ''Charas'' therefore e, the presumption contained in Section 54 of the Act has to be applied against him and this submission of the learned Counsel too is devoid of any merit.

Mr. Anup Chitkara then contended that from the narration of the events as stated by P Ws 5, 6 and 7 it is clear that PW-7 complainant had suppressed the prior infor mation qua the alleged contraband and be searched by the police or by the gazetted officer on which the accused gave his consent that he had no objection if he was searched by the police present there. Search memo mark Ext. PE, grounds of arrest recorded by PW-7 vide memo Ext. PG, seizure of the ''Charas'' vide Memo Ext. PF, parcel Ext. P-l and sample parcel Ext. P-2 bearing signatures of P Ws 5 and 6 were prepared in their presence. On personal search of the accused two kilograms of ''Charas'' was found in his possession besides currency notes worth Rs. 500 and three passengers tickets issued by PW-6 to the accused when he boarded the bust at Chamba going to Mataur were also recovered from his personal search. The tickets three in numbers Ext. PH were identified by PW-6 to be the same issued by him when the accused boarded the bus. PW-7 stated in his deposition that on 18.1.1998 he along with constable Kuldip Singh and LHC PW-3 Chain Singh was on traffic checking at a place known Drada. The police party checked bus bearing registration No. HP-37-0330 at 11 a.m. being driven by PW-5 and PW-6 was its conductor. The bus was going from Holi to Palampur. On checking of the bus one person sitting on the conductor''s seat got down and tried to slip away. He was apprehended and his name was inquired. He disclosed his name as Gulam Rasool the present accused. He entertained some suspicion and summoned P Ws 5 and 6 and in their presence he asked the accused whether he wanted to be searched by the Police or the Gazetted Officer. The accusedas per memo mark ''PE'' gave his consent for personal search by the Police. The accused had wrapped a muffler around his waist and on untying the same by him one more leather bag was recovered and on opening the said leather bag, one polythene bag was found containing the ''Charas'' concealed therein. On weighing it was 2 Kgs. Thereafter, all necessary proceedings were conducted at the spot in the presence of P Ws 5 and 6. The testimony of PW-7 has been fully corroborated by P Ws 5 and 6 who were present on the spot., On re-appraisal and scrutiny of the evidence of P Ws 5, 6 and 7, it is clear that it was a chance recovery and PW-7 had no prior infor mation about the concealment of the ''Charas'' by the accused and, therefore e the provisions of Section 42 of the Act is not attracted in the present case. PW-7 immediately on the arrest of the accused sent ruqua Ext. PA to the Police Station, Chamba through constable Kuldip Singh. Special report Ext. PD was also sent to the Superintendent of Police, Chamba on 19.1.1998. FIR Ext. PB was registered at Police Station, Chamba on the same day by PW-1 S.I. ishori Lal at about 2 p.m. The seized articles recovered from the possession of the accused were handed over to PW-1 in the Police Station by PW-7 on the same day. So all the necessary infor mation, preparation of documents, seizure of the contraband and preparing parcels etc. marked with seal ''K'' were completed by PW-7. Had PW-7 not acted immediately, the accused would have escaped. On these facts, we do not find any inference which could be drawn that there has been any violation of Section 42 of the Act as it was a case of chance recovery. The Constitution Bench of the Supreme Court in State of Punjab Vs. Baldev Singh, held that in a chance recovery the provisions of Section 42 of the Act are not attracted. Hence, this submission too has no merit. thus, the mandatory provisions of Section 42 of the NDPS Act have not been complied with. We" have re-appraised the evidence of P Ws 5 and 6 who are material independent witnesses being the driver and conductor, of the bus in which the, accused was travelling on the day of the occurrence. They in clear and unequivocal words have stated that when the bus reached at Drada it was stopped by PW-7 for traffic checking and while checking of the bus, the accused was found sitting at the conductor''s seat. It is the say of PW-6 that when the accused alighted from the bus the police became suspicious and made inquiry from him about his name. In their presence the Police asked the accused whether he wanted to be searched by the police or by the gazetted officer on which the accused gave his consent that he had no objection if he was searched by the police present there. Search memo mark Ext. PE, grounds of arrest recorded by PW-7 vide memo Ext. PG, seizure of the ''Charas'' vide Memo Ext. PF, parcel Ext. P-l and sample parcel Ext. P-2 bearing signatures of PWs 5 and 6 were prepared in their presence. On personal search of the accused two kilograms of ''Charas'' was found in his possession besides currency notes worth Rs. 500 and three passengers tickets issued by PW-6 to the accused when he boarded the bust at Chamba going to Mataur were also recovered from his personal search. The tickets three in numbers Ext. PH were identified by PW-6 to be the same issued by him when the accused boarded the bus. PW-7 stated in his deposition that on 18.1.1998 he along with constable Kuldip Singh and LHC PW-3 Chain Singh was on traffic checking at a place known Drada. The police party checked bus bearing registration No. HP-37-0330 at 11 a.m. being driven by PW-5 and PW-6 was its conductor. The bus was going from Holi to Palampur. On checking of the bus one person sitting on the conductor''s seat got down and tried to slip away. He was apprehended and his name was inquired. He disclosed his name as Gulam Rasool the present accused. He entertained some suspicion and summoned PWs 5 and 6 and in their presence he asked the accused whether he wanted to be searched by the Police or the Gazetted Officer. The accused as per memo mark ''PE'' gave his consent for personal search by the Police. The accused had wrapped a muffler around his waist and on untying the same by him one more leather bag was recovered and on opening the said leather bag, one polythene bag was found containing the ''Charas'' concealed therein. On weighing it was 2 Kgs. Thereafter, all necessary proceedings were conducted at the spot in the presence of PWs 5 and 6. The testimony of PW-7 has been fully corroborated by PWs 5 and 6 who were present on the spot., On re-appraisal and scrutiny of the evidence of PWs 5, 6 and 7, it is clear that it was a chance recovery and PW-7 had no prior infor mation about the concealment of the ''Charas'' by the accused and, therefore e the provisions of Section 42 of the Act is not attracted in the present case. PW-7 immediately on the arrest of the accused sent ruqua Ext. PA to the Police Station, Chamba through constable Kuldip Singh. Special report Ext. PD was also sent to the Superintendent of Police, Chamba on 19.1.1998. FIR Ext. PB was registered at Police Station, Chamba on the same day by PW-1 S.I. Kishori Lal at about 2 p.m. The seized articles recovered from the possession of the accused were handed over to PW-1 in the Police Station by PW-7 on the same day. So all the necessary infor mation, preparation of documents, seizure of the contraband and preparing parcels etc. marked with seal ''K'' were completed by PW-7. Had PW-7 not acted immediately, the accused would have escaped. On these facts, we do not find any inference which could be drawn that there has been any violation of Section 42 of the Act as it was a case of chance recovery. The Con�stitution Bench of the Supreme Court in State of Punjab Vs. Baldev Singh, held that in a chance recovery the provisions of Section 42 of the Act are not attracted. Hence, this submission too has no merit.

Mr. Anup Chitkara next contended that there are glaring contradictions in the statements of the prosecution witnesses regarding the number of seat being occupied by the accused; the place at which the recovery of ''Charas'' took place, the place where the option u/s 50 of the NDPS Act was given, contraband weighed and samples sealed and memos signed and till these proceedings will show unfair investigation by PW-7. We have re-appraised the evidence of P Ws 5, 6, and 7 carefully. No doubt PW-5 stated that one person was sitting at the conductor''s seat and the police took him into custody but in his cross-examination he admitted that his statement about sitting of one person at the conductor''s seat was incorrect and the person who was apprehended by the police was sitting by the conductor''s seat was correct. It is the say of PW-6 that when the police started checking the bus he was issuing tickets and at the relevant time one person was sitting on the conductor''s seat who was got alighted from the bus by the police. It is the evidence of PW-7 that the bus was stopped for traffic checking and the same was being checked and one person who was sitting on the conductor''s seat, got down and tried to slip away. We find from the evidence of these witnesses that the person who was sitting at the conductor''s seat was later on found to be accused who alighted from the bus when it was stopped by PW-7 for traffic checking. It was the accused only who immediately alighted from the bus when it was stopped and no other passengers got down from the bus as stated by PW-5 driver of the bus. There were about 30 to 35 passengers travelling in the said bus on the relevant day. It is no doubt true that PW-6 stated that the ''charas'' recovered from the possession of the accused was weighed inside the police post which was recovered from him on the bank of the road and he signed documents after the ''charas'' was weighed whereas PW-7 deposed that all the documents were prepared by him at the bank of the road. PW-5 has categorically denied the suggestion of the defense that his signatures on the documents were obtained by the police in Police Post and all the documents were prepared by PW-7 in Police Post.P Ws 5, 6 and 7 have categorically stated that the personal search of the accused was conducted at the same place where the bus was stopped and the necessary documents were prepared at the bank of the road. It may be possible that some of the documents which were not material and significant might have been prepared by PW-7 at the Police Post. The distance between the place at the road side and the police post is about 15 meters as deposed by PW-7 and weights and scales were brought by Constable Kuldip Singh from the Police Post for weighing the seized ''Charas'' at the bank of the road. In one line PW-6 has stated that the ''Charas'' was weighed by the Police inside the police post. These are some minor and insignificant contradictions appearing in the evidence of P Ws 6 and 7 which do not go to the root of the case to doubt its correctness.P Ws 5, 6 and 7 are truthful witnesses and there is no cogent reason to discard and disbelieve their consistent evidence.

Mr. Anup Chitkara, learned Counsel next contended that the investigation of the case was carried out by PW-7 Head Constable Satpal who was complainant in this case which has seriously prejudiced the investigation. In support of this submission he has relied upon a judgment of the Supreme Court in Megha Singh Vs. State of Haryana, in which it has been held that no doubt in the normal course if FIR is registered on the infor mation received from a Police Officer, he should not investigate the case in the interest of fair and impartial investigation but solely on the ground that investigation has been conducted by a Police Officer at whose complaint FIR was registered without showing the prejudice caused to the accused person, the trial cannot be held vitiated. The decision proceeded to hold that it will be examined in the context of the facts and circumstances of each case whether after lodging the FIR it was feasible for the Police Officer to hand over further investigation to another competent Police Officer. In the present case no prejudice has been shown having been caused to the accused in conducting the investigation by PW-7 who lodged the First Infor mation Report and conducted the investigation. PW-7 was the in-charge/Investigating Officer posted in Police Post Drada at the relevant time and as such he was the lone superior officer on the spot as the Station House Officer was posted at Police Station, Chamba which is about 26 K.M. away from the Police Post, Drada where the accused was allegedly apprehended. It is a case of chance recovery and the major part of the investigation was required to be conducted immediately after the accused was apprehended. In this back ground PW-7 could not postpone the investigation after apprehending the accused and recovering the contraband from his personal search. It was his duty to send ruqua for registration of FIR and thereafter arrest the accused after infor ming him of the grounds of arrest and to hand Over the seized articles to the Incharge of the concerned Police Station and thereafter send the report to his immediate officer superior as required under Sub-section (1) of Section 52 and Sections 55 and 57 of the Act. After depositing the seized articles further inves- tigation such as keeping the seized articles in safe custody, sending the sample to the Chemical Examiner and putting up the challan etc. etc. was conducted by other officers. therefore ein the facts and circumstances of this case, the ratio of the judgment of the Supreme Court in Megha Singh v. State of Haryana (supra) is not applicable. We do not find any substance in this submission.

Lastly, the learned Counsel for the accused has argued that the investigation was conducted by PW-7 who is not an empowered officer under NDPS Act. The contention raised deserves to be rejected in view of the fact that the State Government has issued a notification in exercise of the powers conferred by Sub-section (2) of Section 41 of the Act empowering the officers of gazetted rank who have been appointed u/s 7 of the said Act and who are working in the executive field in the departments of Revenue, Excise and Taxation and police of the Government of Himachal Pradesh to exercise the powers specified in Sub-section (2) of Section 41 of the Act, within the area of their respective jurisdiction. PW-7 Head Constable Satpal was, therefore e, a authorized officer to investigate the present case. The defence of the accused in his statement u/s 313 Code of Criminal Procedure. was not found plausible and sustainable as he has failed to point out any reason that the prosecution witnesses examined in this case have falsely implicated him in the commission of the crime. Thusin our considered view, we do not find any fact in this case, as also recorded by the trial Court that there has been any violation of Section 42 or Section v. 50 of the Act. The trial Court has appraised and scrutinized the entire evidence on record and came to the conclusion that the prosecution has proved the guilt of the accused beyond reasonable doubt and in our view the conviction of the accused has been rightly recorded.

In view of the afor esaid findings, we do not find any infirmity or perversity in the impugned judgment of the trial Court. Accordingly, the present appeal fails having no merits and it is dismissed. A copy of this judgment shall be sent to the accused through Superintendent of Jail where the accused is presently lodged.