Kewal Ram vs State of Himachal Pradesh

Sureshwar Thakur, J.—The instant appeal is directed by the accused/appellant, against the impugned judgment, rendered on 8.3.2011, by the learned Sessions Judge (Special Judge), Shimla, Himachal Pradesh, in, N.D.P.S. Case No. 21-S/7 of 2009, whereby, the learned trial Court convicted and sentenced the accused/appellant to undergo rigorous imprisonment for a period of 10 years and to pay a fine in a sum of Rs. 1,00,000/- and in default of payment of fine to further undergo simple imprisonment for a period of one year for the commission of offence punishable under Section 20 of the NDPS Act.

Brief facts of the case, are, that, on 28.6.2009 PW-19 Man Singh, Dy. S.P. Theog, alongwith C Rajinder Singh, ASI Het Ram and some other police officials was present at Chailla in connection with routine patrol duty. PW-19 had received secret information against the accused at about 2.30 p.m. On the receipt of such information, Dy. S.P. Man Singh had prepared a report comprised in Ex. PW-5/D and had forwarded the same to the Superintendent of Police, Shimla through C Rakesh Kumar. Thereafter the police party proceeded to Chailla. On the way from Sainj to Shimla at about 2.50 p.m. PW-19 and other police officials noticed a Bus bearing registration No. HP-03B-6058. The said bus was signaled to stop. PW-1 Chotte Ram has been deposed to be the driver of the bus and PW-2 Chander Mohan has been deposed to be the conductor of the bus. PW-19 and other police officials had entered in the bus. The passengers as also their baggages were sought to be checked. At such stage, the accused had got up from seat No. 31 and had jumped out of the bus alongwith his black coloured bag Ex. P-2. PW-10 Constable Rajinder Singh and other police officials had chased the accused and overpowered him. PW-19 had interrogated the accused. PW-19 and other officials had offered themselves for search vide search memo Ex. PW-1/B, but nothing incriminating had been recovered from them. The accused had been given an option to be searched either before a Magistrate or a Gazetted officer vide consent memo Ex. PW-1/A. The accused had consented for search before the police. As such, PW-19 in the presence of PW-1 and PW-2 and other police officials as also non-officials, had checked bag Ex. P-2 and the same was found to be containing charas Ex. P-4. On weighing the same, the same had been found to be 3 Kg. PW-19 had packed charas in a parcel Ex. P-1 alongwith bag Ex. P-2 and Polythene envelop Ex. P-3. Seal T had been applied to parcel Ex. P-1. NCB forms were filled in by PW-19. Photographs Ex. PW-2/C-1 to Ex. PW-2/C-5 of the spot were clicked. The special report comprised in Ex. PW-10/A was forwarded to the Police Station for registration of FIR through PW-10. The accused had been arrested after having apprised him of the grounds of arrest comprised in Ex. PW-1/G. PW-7 had deposited the case property with Chemical Examiner. On conclusion of the investigation, into the offence, allegedly committed by the accused, final report under Section 173 of the Code of Criminal Procedure was prepared and filed in the Court.

The accused was charged, for, his having committed offence punishable under Section 20 of the NDPS Act, by the learned trial Court, to, which he pleaded not guilty and claimed trial.

In order to prove its case, the prosecution examined 19 witnesses. On closure of prosecution evidence, the statement of accused, under Section 313 of the Code of Criminal Procedure, was recorded, in, which he pleaded innocence and claimed false implication. He chose not to lead evidence in defence.

On appraisal of the evidence on record, the learned trial Court, returned findings of conviction against the accused.

The accused/appellant, is, aggrieved by the judgment of conviction, recorded by the learned trial Court. The learned counsel appearing for the appellant has concertedly, and, vigorously contended, that, the findings of conviction, recorded by the learned trial Court, are, not based on a proper appreciation of evidence on record, rather, they are sequelled by gross mis-appreciation of the material on record. Hence, he, contends that the findings of conviction, be, reversed by this Court, in, exercise of its appellate jurisdiction, and, be replaced by findings of acquittal.

On the other hand, the learned Assistant Advocate General, has, with considerable force and vigour, contended that the findings of conviction, recorded by the Court below, are, based on a mature and balanced appreciation of evidence on record, and, do not necessitate interference, rather merit vindication.

This Court with the able assistance of the learned counsel on either side, has, with studied care and incision, evaluated the entire evidence on record.

The first witness, who stepped into the witness box, in, proof of the prosecution case, is, PW-1 Chotte Ram, the driver of the Bus. He deposes that on 28.6.2009 at about 2.45 p.m. at place "Hatt Kechi" at Chailla crossing, the police officials signaled to stop the bus, upon which he stopped the bus. The police officials entered inside the bus and started checking the bus, bags and other luggage of the passengers. He continues to depose that the police apprehended one person and his photographs were taken. He further deposes that the police disclosed that "Sulpha" was found in the possession of the said person. This witness was declared hostile and on the permission having been granted to learned P.P. he came to be cross-examined. During the course of his cross-examination, he deposed that he could not recognize the accused who is shown to him in the Court to be the same person who had been apprehended by the police on the spot. He has denied the recitals recorded in his statement under Section 161 Cr.P.C. He further stated it to be correct that charas has been recovered by the police at place "Hat Kenchi". He admitted his signatures on various memos prepared during the course of investigation.

PW-2 Shri Chander Mohan, Conductor of the bus has not supported the prosecution case and on the permission having been granted to the learned PP he came to be cross-examined. He deposes that the passengers of the bus were stating that one of the passengers had jumped out of the bus and the police had apprehended him. He further deposes that the police took into possession bus ticket Ex. PW-2/A and yellow card Ex. PW-2/B. During the course of his cross-examination he deposes that the yellow card and tickets were taken into possession by the vide seizure memo Ex. PW-1/F, which bears his signatures.

PW-3 Shri Yugal Kishore deposes that as per entries in the duty register, on 28.6.2009 PW-1 had been deployed as driver of bus No. HP-03B-6058 from Shimla to Madaog, and PW-2 had been deployed with the said bus as its conductor. The abstract of the duty register is comprised in Ex. PW-3/A, which has been deposed to have taken into possession vide memo Ex. PW-3/B which bears his signatures.

PW-4 Shri Parkash Chand deposes that vide seizure memo Ex. PW-3/B, duty register comprised in Ex. PW-3/A was taken into possession by the police. The same has been deposed to be bearing his signatures.

PW-5 HC Diwan Chand deposes that Special Report of the case has been handed over to him by Constable Rakesh Kumar, upon which he made his endorsement and presented the same before Superintendent of Police, Shimla. The signatures of Superintendent of Police authenticating his endorsement are comprised in Ex. PW-5/C. He further deposes that on 29.6.2009 the Superintendent of Police had also handed over to him the original intimation under Section 42(2) of NDPS Act, 1985, under his signatures, the photocopy of which is comprised in Ex. PW-5/D. The same has been deposed to be true and correct as per original. During the course of his cross-examination he deposes that the diary and dispatch register has been maintained in their office regarding receipt or dispatch of any correspondence. It is stated to be correct that both the said reports have been prepared later on.

PW-6 Shri Deep Ram deposes that yellow card comprised in Ex. PW-2/B has been issued by him and bears his signatures.

PW-7 C Surinder Singh deposes that on 29.6.2009 MHC Het Ram handed over to him one sealed parcel having seal impression ''T'' allegedly containing 3 kg. of charas alongwith an envelop containing certain documents, sample of seal vide road certificate No. 43/09 with a direction to handover the same to FSL, Junga. He continues to depose that he carried the same and handed over to FSL, Junga against receipt. He further deposes that he did not tamper with the case property, while it remained in his custody.

PW-8 C Rakesh Kumar deposes that on 29.6.2009 Dy. S.P. Thakur Man Singh handed over to him special report of this case for its onwards transmission to Shimla and the same was handed over by him to the Reader of the Superintendent of Police, Shimla.

PW-9 (Sunil Thakur), since he during his examination-in-chief having not supported the prosecution version, he was declared hostile and was requested by the learned PP to be cross-examined. On his request, having come to be acceded to, he was cross examined but no incriminating material against the accused could be elicited from his cross-examination.

PW-10 C Rajinder Singh deposes that he alongwith ASI Het Ram, HC Yoginder Singh, Bhagwan Singh, C Surinder Singh, Bhupinder Singh, HIG Rajesh Kumar, Inspector Khajana Ram was proceeded towards Chailla in Government vehicle, which was being driver by its driver C Gulzar Mohd for patrolling. He continues to depose that at Chailla Dy. S.P. Man Singh Thakur accompanied them. He further deposes that Dy. S.P. Man Singh Thakur had received secret information that one person traveling in HRTC Bus No. HP-03B-6058 from Badog to Shimla was in possession of charas. On receipt of said secret information, ASI Man Singh prepared intimation under Section 42(2) of the NDPS Act and sent the same through Constable Surinder Singh for its transmission to the Superior Officer of the Police. He further deposes that they laid a Naka at place "Chaila Kenchi". He further deposes that in the meantime HRTC bus arrived there and same was signaled to stop. He further deposes that then he alongwith Dy. S.P. Man Singh Thakur, ASI Het Ram and HC Yoginder Singh entered inside the bus. On seat No. 31 the accused was sitting and he was keeping a black coloured bag on his shoulder. On seeing the police, the accused jumped from the back door. He further deposed that they chased him. Then Dy. S.P. Man Singh Thakur interrogated him. He further deposes that accused was asked as to whether he wants to give search before the Magistrate or gazetted officer upon which he opted to give his search to the police. He further deposes that bag was searched by Dy. S.P. Man Singh Thakur and charas, in the shape of sticks, kept in a polythene lifafa was found in it. He further deposes that before checking the bag, all the police officials give their search to Dy. S.P. Man Singh Thakur upon which nothing incriminating was found. He further deposes that Constable Gulzar Mohammad was sent to bring scales and weights. He further deposes that on weighing the charas, it was found to be 3 kg. He further deposes that the black coloured bag was packed and sealed by putting 9 seals impression of seal "T". He continues to depose that 3 samples of seal "T" on 3 pieces of clothes by putting the 3 seals impression on each clothes were taken into possession. The charas was also taken into possession vide seizure memo Ex. PW-1/E., which bears his signatures. He further deposes that vide seizure memo Ex. PW-1/F two tickets of Rs. 20/- each and one yellow card was also taken into possession. He further deposes that Dy. S.P. Man Singh Thakur prepared Rukka comprised in Ex. PW-10/A, which he carried to the Police Station. On the basis of which MHC of Police State Theog, registered FIR and handed over the file to him and he handed over the case file to Dy. S.P. Man Singh Thakur at the spot.

PW-11 ASI Het and PW-18 constable Gulzar Mohamad have supported the prosecution case and deposed in tandem with the version of prosecution witnesses.

PW-12 Shri Balbir Singh deposes that during the course of investigation, he had recorded the statements of MHC Het Ram and C Surinder Singh under Section 161 of Code of Criminal Procedure.

PW-13 SI Rajinder Singh Guleria deposes that on 10.8.2009 ASI Laiq Ram after the completion of investigation, handed over the case file of this case to him. He further deposes that he recorded the statements of ASI Het Ram and HC Yoginder Singh and thereafter he prepared the police report under Section 173 of the Code of Criminal Produce and presented the same to the Court.

PW-14 ASI Laiq Ram deposes that during the course of investigation he had obtained duty abstract of PWs No. 1 and 2 regarding the duties of PWs 1 and 2.

PW-15 (Surinder Chauhan) and PW-16 (Gopal Verma) since during their examination-in-chief having not supported the prosecution version they were declared hostile and was requested by the learned Public Prosecutor to be cross-examined. On his request, having come to be acceded to, they were cross-examined by the learned Public Prosecutor but no incriminating material against the accused could be elicited from their cross-examination.

PW-17 H.C. Het Ram Sharma, deposes that on 28.06.2009 constable Rajinder Kumar brought Rukka on the basis of which he recorded F.I.R. In cross-examination, he admitted that the case property was deposited with him in the police station.

PW-19 Dy. S.P. Man Singh deposes that on reaching Chaila he received a secret information to the effect that one person carrying black coloured bag traveling in HRTC from Barog to Shimla was in possession of Charas, upon which he prepared an intimation under Section 42(2) of the Narcotic Drugs and Psychotropic Substances Act. Thereafter, he alongwith Inspector Khajana Ram, ASI Het Ram, H.C. Yoginder Singh, HHC Bhagwan Singh, Constable Bhupinder Singh, Constable Rajinder Singh, Constable Surinder Singh and HHC Rajesh laid a nakka at Chaila Kainchy Mod near Giri Ganga Hotel. He further deposes that he stopped the bus and entered the bus from the front door and the accused who was sitting near the back door of the bus got down from the bus and fled away alongwith the bag. He further deposes that he was over powered at a distance of about 20/25 meters. He further deposes that he associated the witnesses Chotu Ram, driver of the bus, Chander Mohan, conductor of the bus, Surinder Chauhan and Gopal Verma workers of the hotel. He further deposes that accused was asked as to whether he wanted to give his search in presence of Magistrate or a Gazetted Officer. He prepared consent memo which was signed by the accused as well as witnesses. He further deposes that on the request having been made by the learned Public Prosecutor, the parcel Ex. P-1 was opened. He further deposes that he checked the bag Ex. P-2 and charas in the shape of sticks was found in it. He further deposes that he prepared identification memo of charas comprised in Ex. PW-1/C. He further deposes that charas was weighed and same was found to be 3 Kilograms. He continuous to depose that Charas was put in plastic lifafa Ex. P-3 and charas Ex. P-4 was put in bag Ex. P-2 and the said bag was packed and sealed in cloth parcel by putting 9 seal impressions of "T". Sample of seal "T" was also drawn. He further deposes that seal after use was handed over to PW-2. NCB forms in triplicate were filled in by him. He further deposes that case property was taken into possession vide seizure memo Ex. PW-1/E. He prepared rukka, on the basis of which FIR was registered. He further deposes that he prepared the spot map comprised in Ex. PW-19/A and recorded the statements of the witnesses. On the personal search of the accused, ticks and yellow care were taken into possession vide memo Ex. PW-1/F. Photographs comprised in Ex. PW-2/C-1 to Ex. PW-2/C-5 were also clicked. He further deposes that special report comprised in Ex. PW-5/A was sent to the office of Superintendent of Police, Shimla through Constable Rakesh Kumar. During the course of his cross-examination he deposes that no passenger of the bus was associated by him as a witness. He denied the suggestion put to him that no paper was prepared by him at the spot and all the papers were prepared in Police Station, Theog. It is also stated to be incorrect that the yellow card was not found in the pocket of the accused. It is also stated to be incorrect that the charas was not recovered from the possession of the accused.

Since the prosecution witnesses have deposed in tandem and in harmony qua each of the links in the chain of circumstances commencing from the proceedings relating to search, seizure and recovery till the consummate link comprised in the rendition of an opinion by the FSL on the specimen parcels sent to it for analysis, portraying proof of unbroken and un-severed links, in the entire chain of circumstances, as such, it is argued that hence when the prosecution case stood established, it would be legally unwise for this court to acquit the accused.

Besides when the testimonies of the official witnesses, unravel the fact of theirs being bereft of any inter-se or intra-se contradictions, hence, consequently, they too enjoy credibility.

Independent witnesses PW-1 (Chotte Ram) and PW-2 (Chander Mohan), have been contended by the counsel for the accused/appellant to have in their respective testimonies repulsed as well as denuded the effect of the projection by the prosecution voiced through the testimonies of the official witnesses, of contraband having been recovered from the exclusive and conscious possession of accused. With both PW-1 and PW-2 having deposed that no contraband was found in their presence, hence appear to have discounted as well as belied the prosecution version communicated through the testimonies of the official witnesses of recovery of contraband having been effected in the manner as deposed in tandem by them. For reiteration, with the imminent fact of both PWs 1 and 2 having in their respective oral depositions overwhelmed the effect and efficacy of the depositions of the official witnesses qua the manner of recovery of contraband from the conscious and exclusive possession of the accused, boosts the learned counsel for the accused/appellant, to contend that it hence, strips the prosecution version of its vigour and vitality. However, even though both PW-1 and PW-2 have turned hostile and have reneged/resiled from their previous statements recorded in writing, however, the preponderant and pre-eminent factum of theirs having admitted their signatures on various memos renders insignificant as well as inconsequential the effect of their turning hostile as well as theirs having reneged from their previous statements recorded in writing. Rather, in the face of the embargo contemplated/envisaged by Sections 91 and 92 of the Indian Evidence Act against their deposing in variance to the recorded recitals in memos Exts. PW-1/E and PW-1/F admitted by both to be bearing their signatures, renders their oral depositions in variance to the recorded recitals in memos aforesaid, to be having no effect so as to overwhelm the import and effect of the recorded recitals which, rather, convey proof qua the prosecution case, as deposed unanimously by each of the official witnesses, of recovery of contraband having been recovered in the manner as deposed by them. With a wholesome reading of the depositions of the official witnesses portraying their testimonies being bereft of any inter-se or intra-se contradictions, hence, their testimonies acquire the virtue of credibility. In aftermath, when the effect of the turning hostile of the independent witnesses aforesaid has been for the reasons afforded herein-above construed to be gathering no momentum. Consequently, the depositions of the official witnesses while, hence being credible lead to the apt conclusion as appropriately drawn by the learned trial Court, that hence, the prosecution has been able to prove the factum of the accused having committed an offence under Section 20 of the NDPS Act.

In the backdrop of the above discussion while its forestalling an inference qua the innocence of the accused, hinged as it is upon credible and trustworthy testimonies of official witnesses, the factum of two other independent witnesses PW-15 and PW-16 having turned hostile and hence having not supported the prosecution case, too looses its probative value for the reasons:

(a) The witnesses to recovery memos, PW-1 and PW-2 by the factum of theirs having admitted their signatures on memos comprised in Ex. PW-1/E and PW-1/F, hence rendering nugatory the effect, if any, of their oral depositions to the contrary when comprises credible and trustworthy evidence, in as much, as, it proves the factum of recovery of contraband from the conscious and exclusive possession of the accused. Consequently, testimonies of PW-15 and PW-16 who were not signatories to the recovery memos comprised in Ex. PW-1/E and PW-1/F cannot hence obviously overcome nor benumb the testimonies of either the official witnesses or of the witnesses to the recovery memos.

(b) With it having been proven beyond reasonable doubt by the testimonies of the official witnesses, that the accused was exclusively and consciously carrying the contraband, especially when their testimonies while not portraying any inherent, blatant or stark inter-se or intra-se contradictions so as to render them inefficacious, are hence, inspiring and credible.

The summum bonum of the above discussion is that the prosecution has been able to adduce cogent and emphatic evidence in proving the guilt of the accused. The appreciation of the evidence as done by the learned trial Court does not suffer from any infirmity, or, perversity. Consequently reinforcingly, it can be formidably concluded, that, the findings of learned trial Court, are, well merited, and, do not merit interference.

In view of above discussion, we find no merit in this appeal, which is accordingly dismissed, and, the judgment of the learned trial Court is affirmed. Record of the learned trial Court be sent back forthwith.