Hem Ram alias Hetu vs State of H.P.

Justice Rajiv Sharma, Judge

The appellant has filed the present appeal against the judgment dated 16.11.2011 of the learned Special Judge, Kullu in Sessions Trial No. 89 of 2009 whereby the appellant, who was charged with and tried for offence punishable, u/s 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 has been convicted to undergo rigorous imprisonment for three years and to pay fine of Rs. 40,000/- and in default of payment of fine, he was directed to further undergo simple imprisonment for six months.

Case of the prosecution, in a nutshell, is that on 11.8.2009, police party consisting of ASI Rajiv Kumar, HC Roop Singh, PW-6 HHC Kashmi Ram, ASI Kesar Singh and LHC Baldev Singh proceeded for patrolling in Ramshila, left bank road, Talogi and Jia in official vehicle. The police party noticed the appellant coming from Jia side carrying a rucksack on his back. The appellant tried to escape. However, he was apprehended. The name and address of the appellant was ascertained. The Investigating Officer apprised the appellant about his suspicion and also apprised him that he has legal right to be searched either before a Gazetted Officer or Magistrate, including the bag being carried by him. The appellant offered to give his personal search and that of the bag to the police on the spot vide memo Ex.PW-6/A. The Inquiry Officer also gave his personal search in the presence of witnesses vide memo Ex.PW-6/B. PW-7 ASI Rajiv Kumar conducted the search of the cream coloured bag of the appellant. The jacket containing black polythene envelope having words �Man Bhawan Store� in which another transparent polythene envelope having word �Shalimar� printed on it was found containing stick shaped black substance-Charas. It weighed 1.300 kilograms. Envelops containing charas were put in the rucksack. It was put in a cloth parcel and parcel was sealed with seal �T� at seven places and other articles were put in separate parcel. NCB forms in triplicate Ex.PW-1/A were filled. The case property was taken into possession vide memo Ex.PW-6/D. The Investigating Officer thereafter sent ruka Ex.PW-7/A to Police Station, Kullu through PW-6 HHC Kashmi Ram for registration of FIR. FIR Ex.PW-3/A was registered by PW-3 Inspector Prem Dass. The Investigating Officer also prepared the spot map. He recorded the statements of the witnesses. The appellant was arrested vide memo Ex.PW-6/E. The Investigating Officer produced the case property and appellant before PW-3 Inspector Prem Dass. He resealed the parcels Ex.P-1 and P-2 with seal �M� at seven places and facsimile of seal �M� was drawn on cloth pieces. He also filled relevant columns of NCB-I in triplicate. He deposited the case property with PW-1 MHC Ram Krishan. It was duly entered by PW1 Ram Krishan in Malkhana register at Sr. No. 165. PW-2 HHC Tek Singh deposited the case property with F.S.L. Junga vide receipt Ex.PW-1/B. The Investigating Officer also prepared special report Ex.PW-4/A and submitted before the Additional S.P., Kullu. The Additional S.P. after making endorsement Ex.PW-4/B handed over the same to the Reader. PW-4 HC Nirat Singh entered the same on the relevant register at Sr. No. 56 vide Ex.PW-4/C. The F.S.L report is Ex.PA. According to the report, the sample was Charas and the quantity of resin was 29.22% w/w. The Station House Officer presented the challan u/s 173 of the Code of Criminal Procedure before the competent court. The statement of appellant was also recorded u/s 313 of the Code of Criminal Procedure. According to him, no recovery of Charas was effected from him. He was innocent and has been implicated falsely. The trial court convicted the appellant, as noticed above.

Mr. Ravinder Thakur has strenuously argued that his client is innocent and the prosecution has failed to prove the charge against his client.

Mr. Vikas Rathore, learned Deputy Advocate General has supported the judgment dated 16.11.2011.

I have heard the learned counsel for the parties and have perused the judgment carefully.

PW-7 ASI Rajiv Kumar and PW-6 HHC Kashmi Ram have testified that on 11.8.2009, they alongwith ASI Kesar Singh, HC Roop Singh and LHC Baldev had gone in official vehicle for patrolling. They noticed a person coming from Jia side at 8.30 P.M. He tried to escape. He was nabbed. They waited for independent witness, however, nobody came. PW-6 Kashmi Ram and HC Roop Singh were associated as witnesses. The appellant was apprised of his legal right. The appellant consented that he wanted to give his search to the police, present on the spot. PW-7 Rajiv Kumar also gave his personal search to the appellant vide memo Ex.PW-6/B. The rucksack was searched. It contained contraband. It was in the shape of sticks. The sticks were broken and on the basis of smell, it was found to be Charas. It was weighed with the help of scale and it weighed 1.300 kilograms. The charas was put in the same envelopes and thereafter put in the rucksack. The bag was sealed in cloth parcel with seal �T� at seven places. The other clothes recovered from the appellant were kept in another cloth parcel and were sealed with seven seals of �T�. PW-7 Rajiv Kumar filled NCB-1 in triplicate Ex.PW-1/A. The parcels were taken into possession vide memo Ex.PW-6/D. The appellant was also apprised about grounds of his arrest vide memo Ex.PW-6/E. PW-7 Rajiv Kumar prepared ruka Ex.PW-7/A on the basis of which FIR Ex.PW-3/A was registered. PW-7 also prepared site plan. PW-6 and PW-7 came to the Police Station at 2.00 P.M. The appellant and case property were produced before the Inspector/S.H.O. He resealed the case property with seal �M� at seven places. Special report, as noticed above, was prepared Ex.PW-4/A and sent to the Addl. S.P. Kullu.

PW-3 Inspector Prem Dass has deposed that on 11.8.2011 on receipt of ruka Ex.PW-7/A through PW-6 HHC Kashmi Ram, he registered the FIR Ex.PW-3/A. Endorsement Ex.PW-3/B was made over ruka and the case file was handed over to PW-6 HHC Kashmi Ram. He was directed to take the same to the spot. At 2.00 A.M. on 12.8.2009, PW-7 ASI Rajiv Kumar produced the case property comprising of two parcels Ex.P-1 and P-2 alongwith NCB forms in triplicate and appellant before him. He resealed the same with seal �M� at seven places. He also filled in column No. 9 to 11 in the NCB forms in triplicate Ex.PW-1/A.

PW-1 MHC Ram Krishan has deposed that on 12.8.2009, PW-3 Inspector Prem Dass deposited with him two sealed parcels duly sealed with seal �T� and resealed with seal �M� alongwith sample seals. These were entered at Sr. No. 165 in the relevant register. The case property alongwith samples of seals, NCB-1 in triplicate, docket, copy of FIR, copy of seizure memo were sent through PW-2 HHC Tek Singh vide Ex.PW-1/D to FSL, Junga. PW-1 after depositing the case property on his return deposited receipt Ex.PW-1/B with him. He has proved copy of Malkhana register Ex.PW-1/C.

PW-2 HHC Tek Singh has corroborated the testimony of PW-1. According to him, on 12.8.2009 PW-1 handed over one parcel sealed with seal �T� and resealed with seal �M� alongwith NCB-1 in triplicate and other relevant documents vide RC No. 114 of 2009 vide Ex.PW-1/D. Case property was deposited in FSL, Junga on 13.8.2009 vide receipt Ex.PW-1/B, which was deposited with MHC on return.

PW-4 HC Nirat Singh has deposed that special report Ex.PW-4/A was handed over to him by Addl. S.P. Kullu after making endorsement Ex.PW-4/B. He also entered the same in the relevant register at Sr. No. 56.

Mr. Ravinder Thakur has strenuously argued that there are material contradictions in the statements of PW-6 and PW-7. The Court has gone through the statements of PW-6 and PW-7. There are no inherent contradictions, as argued by Mr. Ravinder Thakur.

Mr. Ravinder Thakur has also argued that independent witnesses were not associated. It has come in the evidence that the appellant was apprehended at 8.30 P.M. and it was dark. The police waited for the independent witnesses, but nobody came. In these circumstances, independent witnesses could not be associated. Moreover, two shops were closed. It is not the case that the prosecution has not tried to associate independent witnesses. In this case, police has tried to associate the independent witnesses but they were not available. Statements of PW-6 and PW-7 inspire confidence. It is settled law by now that the statements of official witnesses, if inspire confidence, can be taken into consideration. In the instant case, statements of PW-6 and P-7 are corroborated by other witnesses. The contraband has been recovered from the bag, thus, section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 was not attracted in the present case. The case property was sealed in accordance with law and thereafter PW-7 has produced the same before PW-3. PW-3 has resealed the same with seal �M�. He has deposited the same in the Malkhana. The case property was delivered to be examined by FSL, Junga. The sample has reached FSL, Junga intact. The report of Chemical Examiner is Ex.PA. The case property was duly sealed and seals were tallied with the sample seals and thereafter the same was examined in the FSL, Junga. Relevant portion of Ex.PA reads thus:

Various scientific tests such as physical identification, chemical and chromatographic analysis were carried out in the laboratory with the exhibit under reference. The above tests performed indicated the presence cannabinols including the presence of tetrahydrocannabinol in the exhibit. The microscopic examination indicated the presence of Cystolithic hairs in the exhibit. Charas is a resinous mass and resin is an active ingredients of Charas, which on testing was found present in the exhibit. The quantity of the resin as found in the exhibit was 29.22% w/w. The result thus obtained is given below:

The Exhibit is extract of cannabis and the sample of Charas.

The Chemical Examiner has specifically certified the presence of cannabis tetrahydrocannabinol. The percentage of resin was found 29.22% w/w. The prosecution has fully proved its case that the Charas was recovered from the conscious and exclusive possession of the appellant on 11.8.2009.

Accordingly, in view of the observations and discussions made hereinabove, there is no merit in the appeal and the same is dismissed. Bail bonds are cancelled. No costs.