Jaivir Singh vs State of Himachal Pradesh

Surinder Singh, J.—The appellant felt aggrieved and dissatisfied by the judgment of conviction and sentence passed by the learned Sessions Judge in S.T. No.1 of 2007, decided on 27.4.2011, whereby he was sentenced u/s 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985, in short ''the Act'', for allegedly keeping in his possession 34.01% resin of Cannabis Plant in the recovered stuff of 1 Kg., to undergo rigorous imprisonment for a period of three years and six months and also to pay a fine of Rs.40,000/- , in default of payment to further undergo simple imprisonment for a period of six months. The period of detention undergone by the appellant was ordered to be set off as per provisions of Section 428 of the Code of Criminal Procedure.

In short, the facts giving rise to the present appeal can be stated thus. On 7.1.2005, police party headed by PW5 ASI Sohan Singh was on patrolling duty and checking of the vehicles on Mandi-Kullu National Highway. Around 2.00 p.m. they were present at ''Khoti Nala''. In the meantime, a private bus bearing registration No.31-3781 came from Kullu side. It was stopped for checking. PW2 Neeraj Kumar was on steering-wheel, whereas Parkash Chand was the conductor of the bus. The police started checking the bus. The appellant, hereinafter to be referred as "the accused" was sitting on seat No.39. He was holding a polythene bag Ext.P4 in his lap. The police reached near his seat and asked about his identity. Ext.P4 envelope was having the imprint of words "Haldi Ram". On checking, it was found to have contained pancake like and sphere like pieces of ''Charas''. On weighing, it turned to be 1 Kg.

ii) Two samples of 25 grams each were separated from the recovered stuff for chemical examination. Both the sample parcels were sealed separately with seal producing the impression of English letter "S". Remaining bulk was also sealed with the same seal. Sample of seal was also taken on a separate piece of cloth and one of such impression is Ext.PA. Case property was taken into possession vide seizure Ext.PG. He obtained the receipt on the said RC and handed over to the MHC aforesaid on his return to the Police Station. memo Ext.PB. Police also filled up the NCB forms in triplicate one of which is Ext.PR.

iii) Ruka Ext.PL was sent for the registration of the case through PW1 HC Malkiat Singh, which culminated into FIR Ext.PC.

iv) Police also prepared the site plan Ext.PM and recorded the statements of the prosecution witnesses.

v) The accused was arrested and the grounds of arrest Ext.PN were informed to him.

vi) The accused as well as the case property was produced before PW9 Inspector Dhabe Ram in the evening on the same day. Each of the sample parcels and bulk were resealed by him with seal English letter "K". He also filled-up the relevant columns of NCB forms. The sample of said seal was taken on a separate piece of cloth Ext.PE and the case property was deposited with PW3 the then MHC Jaspal Singh, which was entered in the Malkhana register copy whereof is Ext.PF.

vii) The special report was sent to the higher officer within the statutory period.

viii) On 8.1.2005 a sample parcel was sent alongwith NCB form, copy of FIR and seal samples of both the seals aforesaid through PW6 Constable Inder Singh for its analysis to CTL, Kandaghat vide RC

ix) Sample on its analysis tested positive for Charas. The report is Ext.PS. It contained 34.01% resin of Cannabis Plant.

After completing the investigation, case was presented in the Court for the trial of the accused. The accused was accordingly charge-sheeted for the offence aforesaid. He pleaded not guilty and claimed trial.

To prove its case, the prosecution examined its witnesses. The accused was also examined u/s 313 of the Code of Criminal Procedure. He admitted that he was traveling in the said bus, which was checked by the police, but denied the recovery as alleged. He further stated that the police had obtained signatures of the witnesses on the blank papers. His defence was that when the bus was stopped it took undue time, there were 3-4 persons who picked up altercation with the police and he was falsely implicated in the case. To prove his case he also examined DW1 Shri Ner resident of Haryana, who was allegedly traveling in the same bus. He gave absolutely a new story that when the police stopped the bus, they enquired how many persons traveling in the bus were the residents of Haryana State, on this 3-4 persons stood-up. The accused had some arguments with the police. On having enquired about their fault, police apprehended the accused and allowed the bus to leave. According to him, he did not know the accused prior to the incident nor was a summoned witness. Then it is not understood as to how the accused was able to produce him as a witness. He did not report about the above incident if the accused was wrongly roped in the case. He also did not produce any ticket to show that he was infact traveling in the said bus on that date. He failed to name the hotel where he had stayed at Manali. Therefore, his statement could not probablise the defence version and was rightly rejected by the learned trial Court. However, the learned trial Court banked upon the statements of the prosecution witnesses, thus convicted and sentenced the accused as aforesaid.

Shri P.P. Chauhan, Learned Counsel for the accused, vehemently argued that the driver of the bus PW2 Neeraj Kumar did not support the case of the prosecution at all and the bus conductor was not examined and further that the story as propounded by the prosecution with respect to the recovery of the alleged narcotic from the possession of the accused is wrong and also contradictory. He further ventilated that the statements of the officials witnesses are not inspiring confidence, therefore, the prosecution case suffers from fatal infirmities and it would not be safe to place explicit reliance on the statements of the official witnesses. To buttress his arguments he cited Kommoji Kiran Kumar @ Kiran v. State of A.P., 2006 (3) CCC 271 (AP) and Jagdish v. State of M.P., (2003) 9 SCC 159.

On the other hand, Shri P.M. Negi, learned Deputy Advocate General supported the impugned judgment of conviction and sentence and argued that there is a common tendency of the independent witnesses to turn hostile in the narcotic cases and it is neither mandatory nor necessary to include the independent witnesses but infact independent witnesses were associated but for obvious reasons the driver was examined, turned hostile and the conductor was given up having won over. He also argued that the statements of the official witnesses are to be weighed like any other statement. There is no material contradiction appearing in the statements of the official witnesses, rather their testimonies inspire confidence. Further that there is no force in the arguments advanced by the Learned Counsel for the accused regarding foisting a false case of 1 Kg. contraband due to some rift with the police. He also argued that the defence taken is an afterthought. The accused was produced before the Magistrate after the recovery, no such complaint was made by him, therefore, the defence raised was rightly rejected and DW was correctly disbelieved. He also submitted that the case law as cited by the Learned Counsel is not at all attracted in the facts and circumstances of this case, therefore, there is no justified reason to interfere with the judgment of conviction and sentence passed by the learned trial Court.

I have given by thoughtful consideration to the rival contentions of the Learned Counsel for the parties and have thoroughly and carefully examined the evidence on record.

PW5 ASI Sohan Singh supported the case of the prosecution verbatim. He stated that it was a routine checking and he in the presence of PW2 Neeraj Kumar driver and bus conductor, entered inside the bus from back door and he initiated the search operation within 3/4 minutes he reached the accused, who was occupying seat No.39, he was found carrying a polythene bag in his hand in his lap. He asked as to where he was going. His reply was that he had visited Kullu and was going back to Haryana. On checking the polythene bag having inscription of "Haldi Ram" printed on it, it was found containing Charas in the shape of sticks, Chapatis and balls. Two samples of 25 grams each were separated and sealed with seal impression "S" and the remaining bulk was also sealed in the presence of bus driver (PW2) and the conductor and other police officials. The sample parcels were marked ''A1'' and ''A2''. He also stated about fixing of nine seals on the remaining bulk and six on each of the sample parcels. The sample of seal Ext.PA was also taken on a piece of cloth. He also testified having filled-up the relevant columns of NCB forms one of which is Ext.PR. He had prepared the search and seizure memo on the spot in the presence of PW2 Neeraj Kumar and Parkash Chand, conductor and further stated having sent Ruka Ext.PL for the registration of the case, which contained entire details regarding recovery and site plan Ext.PM was also prepared. The accused was arrested by him and the grounds of arrest Ext.PN were informed to him. Around 7.30 PM he produced the accused alongwith the case property with six seals of "K" on each of the sample parcels before PW9 SHO Dhabe Ram even at that time he did not make any complaint to the S.H.O. regarding false implication as alleged. S.H.O. had filled-up the relevant columns of the NCB forms on its resealing. Thereafter deposited it with the then HC Jaspal Singh (PW3), who was performing the duties of MHC. PW3 also testified having received the case property alongwith the sample seals. The aforesaid seals were found intact. Resealing process was also performed in his presence. He testified that the entries of the case property were made in the Malkhana register, abstract of which is Ext.PF. He further stated having sent the sample parcel on 8.1.2005 alongwith NCB form, copy of FIR, sample of seals to FSL, Junga vide RC Ext.PG through PW6 Constable Inder Singh. There is also endorsement of the relevant papers alongwith sample of seals and NCB forms etc. On the opposite side of the RC having received at CTL, Kandaghat (Ext.PH).

The link evidence in the instant case is complete. The case property was identified to be the same during the trial of the case by the official witnesses. In cross-examination of PW5 ASI Sohan Singh nothing material could be extracted to doubt the prosecution version. He testified that the accused was the first passenger having been searched by him and the remaining police officials were assisting him. He took about 2-4 minutes in searching the passengers before he reached at seat No.39. According to him, there were 15-20 passengers in the said bus. He did not suspect that the accused might be having some contraband in his possession. He also stated that the remaining passengers had been searched by the other police officials. He further stated that the samples had been drawn by him from some pieces of sticks, Chapatis and balls. He also did not receive any prior information about the transportation of the Charas in the bus. He denied that 2/3 passengers were made to alight from the bus who objected for delay, as they were getting late to reach their destination and further that some altercation took place between the police and the said passengers and that the accused was falsely implicated in the case being from Haryana.

PW1 HC Malkiat Singh supported the case of PW5 ASI Sohan Singh regarding recovery and sampling in material particulars. He stated that this was the first vehicle reaching the spot which was searched by them. He stated that ASI Sohan Singh had conducted the search of the passengers upto seat No.39. He denied that bag aforesaid was unclaimed one and the case was falsely foisted upon the accused as he picked up the altercation with the police.

PW4 Constable Achhar Singh proved the entry in the Roznamcha Ext.PJ with respect to departure of patrolling duty and checking. PW9 Inspector/SHO Dhabe Ram stated about the resealing of the case property by him as aforesaid and its deposit in the Malkhana.

As against above PW2 Neeraj Kumar, the driver of the private bus aforesaid turned hostile and did not support the case of the prosecution. Although he admitted that the bus was stopped for checking by the police and he alongwith conductor alighted from the bus, and nothing was recovered from the bus, but according to him three passengers were alighted from the bus by the police. On declaring hostile he was cross-examined by the learned Prosecutor and confronted and contradicted with his statement Ext.PP recorded u/s 161 of the Code of Criminal Procedure. He could not give satisfactory explanation as to why his statement was incorrectly recorded. This statement was proved by ASI Sohan Singh (PW5) as having been recorded as stated by the said driver. According to him, nothing was omitted or added from his statement. PW2 Neeraj Kumar stated that he knew Hindi being educated upto 5th standard. He also admitted his signatures on the seizure memo Ext.PB and also on grounds of arrest Ext.PN. None of these documents suggests that his signatures were obtained on blank papers as stated by him. In cross-examination by the accused he contradicted himself that unclaimed bag was found inside the bus, whereas in the earlier part of his statement he stated that nothing was found in his presence.

On deep scrutiny of the evidence on record, I do not find any material contradictions in the statements of the official witnesses, which make the prosecution case a suspect.

Thus, from the above conspectus of the discussion it clearly emerges that the testimony of the driver aforesaid cannot be treated as completely washed off the record. He stated having signed the blank papers which otherwise does not appear to be so. His testimony as a whole on critical appreciation with due care and caution exhibits that during the whole of the proceedings of search, recovery and sampling, he was present on the spot. His signatures were not obtained on blank papers. He stood confronted and contradicted with his earlier statement recorded u/s 161 of the Code of Criminal Procedure. He can be believed to the extent his testimony is consistent and dependable with those of the official witnesses.

The Supreme Court in Ramesh Bhai Mohan Bhai Koli v. State of Gujarat, (2011) 3 SCC (Cri) 102, observed in paras 16 and 17 as under:

It is settled legal proposition that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross examine him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on a careful scrutiny thereof. (vide Bhagwan Singh Vs. The State of Haryana, ; Shri Rabindra Kumar Dey Vs. State of Orissa, ; Syad Akbar Vs. State of Karnataka, and Khujji alias Surendra Tiwari Vs. State of Madhya Pradesh,

In State of U.P. Vs. Ramesh Prasad Misra and another, this Court held that evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon. A similar view has been reiterated by this Court in Balu Sonba Shinde Vs. State of Maharashtra, ; Gagan Kanojia and Anr. v. State of Punjab, (2006) 13 SCC 516 ; Radha Mohan Singh @ Lal Saheb and Others Vs. State of U.P., ; Sarvesh Narain Shukla Vs. Daroga Singh and Others, and Subbu Singh Vs. State by Public Prosecutor, .

Further in C. Muniappan & Ors. v. State of Tamil Nadu, JT 2010 (9) SC 95, the Apex Court, after considering its all earlier decisions on this point, summarized the law applicable to the case of hostile witnesses as under:

70.1 The evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defence.

70.2 In the instant case, some of the material witnesses i.e. B. Kamal (PW.86); and R. Maruthu (PW.51) turned hostile. Their evidence has been taken into consideration by the courts below strictly in accordance with law.

70.3 Some omissions, improvements in the evidence of the PWs have been pointed out by the Learned Counsel for the appellants, but we find them to be very trivial in nature.

It is settled proposition of law that even if there are some omissions, contradictions and discrepancies, the entire evidence cannot be disregarded. After exercising care and caution and sifting through the evidence to separate truth from untruth, exaggeration and improvements, the court comes to a conclusion as to whether the residuary evidence is sufficient to convict the accused. Thus, an undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution''s witness. As the mental abilities of a human being cannot be expected to be attuned to absorb all the details of the incident, minor discrepancies are bound to occur in the statements of witnesses. (vide Sohrab and Another Vs. The State of Madhya Pradesh, ; State of U.P. Vs. M.K. Anthony, ; Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat, ; State of Rajasthan Vs. Om Prakash, ; Prithu @ Prithi Chand and Another Vs. State of H.P., ; State of U.P. Vs. Santosh Kumar, and State v. Saravanan and Anr, AIR 2009 SC 151)

In Himanshu @ Chintu Vs. State of NCT of Delhi, the Supreme Court held that evidence of a hostile witness remains admissible evidence and it is open to the Court to rely upon dependable part of that evidence which is found to be acceptable and duly corroborated by some other reliable evidence available on record.

The above legal position leaves no manner of doubt that it is open to the Court to rely upon the dependable part of the evidence which is found acceptable and corroborated by some other evidence available on record. Further there is no rule of law that the testimony of the official witnesses cannot be accepted, if found reliable. Therefore, none of the judgments cited by the learned Counsel for the accused helps him in any way. Also for the reasons that in Kommoji Kiran Kumar''s case (supra) there was non-compliance of Section 50 of the Act, besides hostility of the independent witnesses and in Jagdish''s case (supra) the testimony of PW1 stood contradicted, as Panch witnesses denied that a search and seizure of opium took place in their presence and even driver and conductor of the bus were hostile. The prosecution evidence suffered from various infirmities. But in the instant case, there is no material infirmity which shakes the very foundation of the prosecution case. It is also a commonly known fact that in narcotic cases the independent witnesses generally turn hostile for the obvious reasons. However, if the official witnesses are worth inspiring confidence, their testimonies can be acted upon and the testimony of hostile witness can be relied upon to the extent it is found dependable to either side.

In the instant case, I do not find any major defect which shakes the prosecution version.

Further, the Learned Counsel for the accused intends to shake the testimonies of PW5 ASI Sohan Singh and PW1 HC Malkiat Singh on the ground that there appear some variations with respect to the manner in which the search of the bus was conducted. But, however, it is absolutely clear that on reaching near seat No.39, the accused was found sitting there with the polythene bag which contained Charas. On the scrutiny of evidence I do find that the recovery stands proved. The link evidence is complete, therefore, the prosecution is able to prove its case beyond reasonable doubt and the accused could not probablise his defence in any manner, as such, it was rightly rejected.

The appeal sans merit and is accordingly dismissed.

Send down the records.