Radhu Ram vs State of Himachal Pradesh

Sanjay Karol, J.—Assailing the judgment dated 11.1.2008, passed by learned Sessions Judge, Kinnaur at Rampur Bushahr, H.P., in Sessions Trial No. 1 to 2006, titled as State of Himachal Pradesh vs. Radhu Ram, whereby appellant-accused stands convicted for having committed an offence punishable under the provisions of Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) and sentenced to undergo rigorous imprisonment for a period of 10 years and pay fine of ` 1,00,000/- and in default of payment of fine to undergo simple imprisonment for six months, he has filed the present appeal under the provisions of Section 374 of the Code of Criminal Procedure, 1973.

It is the case of prosecution that on 28.9.2005, Inspector Shrawan Kumar (PW-9) along with HC-Harbans Kumar (PW-3), HC-Ranjit Singh (PW-4), Const. Nettar Singh (PW-6) and other police officials were present at Bandal Mor on Nithar-Bagipul Road. At about 5.00 a.m., with the help of torch light, they saw a person carrying a bag (pithu) come from the side of village Ghattu. On seeing the light he tried to run away. On suspicion he was apprehended. On query he disclosed his name as Radhu Ram (accused), resident of village Ghattu. He informed the police that he was carrying personal belongings in the bag. On suspicion the bag was checked from which another bag, red in colour, containing charas like substance in the shape of candles and balls was recovered. The same was weighed and found to be 7 kilograms. Two samples of 25 grams each were drawn and sealed with seal impression-A. Remaining bulk parcel was also sealed with seal impression-A. NCB forms were filed up on the spot and contraband substance seized vide memo (Ext. PW-3/B). Ruka (Ext. PW-9/A) was sent for registration of case through Constable Nettar Singh (PW-6). Resultantly F.I.R. No. 68/2005, dated 28.9.2005 (Ext. PW-11/A) was registered against the accused under provisions of Section 20 of the Act by ASI Om Chand (PW-11), at Police Station Nirmand, Distt. Kullu. Accused was arrested. Necessary investigation was conducted on the spot. Case property along with NCB forms was handed over to MHC Amar Singh (PW-8). Special report (Ext. PW-5/A) was sent to the superior officer. Sealed sample was sent for chemical analysis vide Road Certificates (Ext. PW-8/B, 8/C, 8/D and 8/E). Report of chemical analyst (Ext. PW-10/A) revealed the contraband substance to be charas and, as such, with the completion of investigation, challan was presented in the Court for trial.

Accused was charged for having committed an offence punishable under the provisions of Section 20 of the Act, to which he did not plead guilty and claimed trial.

In order to prove its case, in all, prosecution examined as many as eleven witnesses and statement of the accused u/s 313 Cr. P.C. recorded, in which he took up defence of false implication on the asking of one Sh. Teja Singh. In defence accused also examined Sh. Bhawani Singh (DW-1) as his witness.

Appreciating the material on record, including the testimonies of witnesses, trial Court convicted the accused for the charged offence and sentenced him as aforesaid. Hence, the present appeal.

We have extensively heard learned counsel appearing on both sides and perused the record.

Assailing the judgment Mr. B.R. Sharma, learned counsel for the appellant-accused has urged that: (i) Presence of police party on the spot appears to be doubtful. (ii) Testimonies of prosecution witnesses being contradictory are not worthy of credence. (iii) Contraband substance allegedly seized from the accused was not kept in safe custody. (iv) The link evidence is missing, rendering the prosecution story to be doubtful, if not false.

Undisputedly, prosecution has not examined any independent witness. Recovery was also not effected from the conscious possession of the accused in the presence of any independent witness. In order to establish its case, beyond reasonable doubt, prosecution has referred to and relied upon the testimonies of police officials namely HC-Harbans Kumar (PW-3), HC-Ranjit Singh (PW-4), Const. Nettar Singh (PW-6) and Inspector Shrawan Kumar (PW-9).

Now PW-9 categorically states that on 26.9.2005 he left Kullu along with police party towards Nirmand side. On 28.9.2005 at about 5.00 a.m., while they were at Bandal Mor, with the help of torch light they saw the accused. Seeing the police party he tried to flee away. On suspicion he was apprehended. Accused was carrying a bag which was searched. In the bag there was another red coloured bag containing charas in the shape of balls and candles. Accused disclosed his identity. Upon weighment, contraband substance was found to be of 7 kilograms. Two samples of 25 grams each were drawn and sealed with seal impression-"A". Remaining charas was also sealed separately with the same seal. Sample seal (Ext. PW-3/A) was handed over to HC-Ranjit Singh (PW-4). He filled up NCB forms and seized the contraband substance vide memo (Ext. PW-3/B). Ruka (Ext. PW-9/A) was prepared and sent through Const. Nettar Singh (PW-6) and after registration of F.I.R. No. 68/2005, dated 28.9.2005 (Ext. PW-11/A) at Police Station Nirmand, Distt. Kullu, brought the case file at Bagipul. Accused was arrested. After reaching the police station he handed over three parcels, NCB forms along with seals to the SHO, Om Chand (PW-11) who resealed the parcels with his seal impression-H. Special report (Ext. PW-5/A) prepared by him was handed over to PW-11 for further transmission to Dy. S.P. This witness has withstood the test of cross examination. He clarifies that there is no abadi at the place where accused was apprehended. Hence, in our considered view, there was no question of associating any independent witness as it was a case of chance recovery. He clarifies that police party had the scales, with which, contraband substance was weighed.

Testimony of this witness with regard to recovery is materially corroborated by HC-Ranjit Singh (PW-4) and Const. Nettar Singh (PW-6), who, also have withstood the test of cross examination and we find their testimonies to be absolutely inspiring in confidence. There is contradiction, minor in nature, with regard to the date on which police party left Police Station Kullu. One witness states that they left on 26th September, 2005 whereas another states that they left on 27th September, 2005. But this contradiction, in our considered view, is not material at all. It is neither a fact in issue nor a relevant fact. What is material is the presence of the police party on the spot and recovery of the contraband substance from the conscious possession of the accused in the early hours of 28th September, 2005, which fact, we find to have been materially established on record, beyond reasonable doubt. Witnesses have categorically denied false implication on the asking of Sh. Teja Singh, allegedly dealing in illicit trade of charas and with whom wife of the accused was allegedly having illicit relationship. Significantly there is nothing on record to even remotely suggest, much less, establish such fact. It is not a case where Teja Singh was having good relations with the police officials or that contraband substance was planted by Teja Singh. Defence of the accused cannot be said to have been probablized at all.

Constable Nettar Singh (PW-6) has further clarified that he handed over rukka to ASI Om Chand (PW-11) and after registration of F.I.R., took the file and gave it to Inspector Shrawan Kumar (PW-9). ASI Om Chand (PW-11) has corroborated such fact.

Conjoint reading of testimonies of Inspector Shrawan Kumar (PW-9) and ASI Om Chand (PW-11) evidently proves that the case property was handed over by PW-9 to PW-11. PW-9 had affixed seal-A on all the three parcels and PW-11 had also affixed his seal-H thereupon. In the like manner, seal was also affixed on the NCB forms. Significantly PW-11 was officiating as S.H.O. and, as such, he did not associate any independent persons at the time of resealing. He forwarded the report to superior officers. He also handed over the sealed samples and the NCB forms to MHC Amar Singh (PW-8), which version stands corroborated by the said witness.

Further PW-8 states that he had sent one sample parcel along with sample seal and NCB form for chemical analysis through constable Jiwa Nand (PW-2) to the laboratory at Kandaghat but the same was returned as the designated laboratory was informed to be at Junga. He has proved Road Certificate (Ext. PW-8/B). On 3.10.2005, he handed over the sample to Constable Sunil Kumar (PW-1) who took it for chemical analysis to the F.S.L. Junga, however the same was returned and deposited with him on 5.10.2005. Road Certificate was also prepared to this effect. He further states that on 6.10.2005 he handed over the parcel to constable Birbal Dass (PW-7) to be deposited at the CFSL, Chandigarh. He has proved road certificate (Ext. PW-8/D). Even there an objection was raised that sample be deposited with the State Laboratory. As such on 5.12.2005, he handed over the sample to Constable Jiwa Nand (PW-2) along with Road Certificate (Ext. PW-8/E) who deposited the same at C.T. L. Kandaghat. The witness clearly states that as long as sample remained with him, it was not tampered with.

When we examine the testimonies of constables Sunil Kumar (PW-1), Jiwa Nand (PW-2) and Birbal Dass (PW-7), we find them not only to have materially corroborated the version so stated by MHC Amar Singh (PW-8) but further clarified that so long as the case property remained with them, it was kept intact and not tampered with at all. It is true that on four different occasions the case property was sent to the laboratories but then it cannot be said that police officials were negligent or had delayed in getting the sample analyzed at the appropriate laboratory. When objections were raised, police officials brought the case property back and it was handed to the MHC. From the report of chemical analyst (Ext. PW-10/A) it is evident that seals on the parcel were found intact.

It also cannot be said that link evidence is missing or that case property stood tampered with or that it was not kept in safe custody.

Reliance on testimony of Sh. Bhawani Singh (DW-1), in no manner, advances the case of accused. We do not find his version that accused was picked up from bus stop Ghattu, by certain persons who had alighted from a vehicle with a red light, to be inspiring in confidence at all. Witness, who remained Pradhan of the village, did not bother to either resist or register any protest or file complaint before the appropriate authority. Neither did he make any inquiries about such persons who took away the accused in a vehicle having red light. Also he did not ascertain the cause for the same. Why so? He does not explain. His testimony is absolutely uninspiring in confidence and does not probablize the appellant''s case.

Learned counsel has referred to and relied upon the decision rendered by a Coordinate Bench of this court in State of Himachal Pradesh Vs. Shri Fred Robinson, . We are afraid the decision is based on given facts and circumstances which are neither similar nor identical and thus principle of law laid down therein is squarely inapplicable in the instant case.

Thus, from the material placed on record, it stands established by the prosecution, beyond reasonable doubt, by leading clear, cogent, convincing and reliable piece of evidence, that accused was carrying contraband substance i.e. charas weighing 7 kilograms.

For all the aforesaid reasons, we find no reason to interfere with the judgment passed by the trial Court. The Court has fully appreciated the evidence placed on record by the parties. There is no illegality, irregularity, perversity in correct and complete appreciation of the material so placed on record by the parties. Findings of conviction cannot be said to be erroneous or perverse. Hence, the appeal is dismissed.

Records of the Court below be immediately sent back.