Ram Kumar vs State of Himachal Pradesh

Rajiv Sharma, Judge

This Criminal Appeal is directed against the judgment dated 23.10.2010, passed by the learned Special Judge, Kinnaur, Sessions Division at Rampur Bushahr, H.P. in NDPS Act Case No. 02 of 2009, whereby the appellant, who was charged with and tried for offence punishable u/s 20(b)(ii)(c) of the N.D.P.S. Act has been convicted and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000/- and in default to undergo rigorous imprisonment for two years. Case of the prosecution, in a nut-shell, is that on 24.10.2008, a police party headed by ASI Jagat Singh, was patrolling at about 2:30 p.m. at Dhanudhar, Police Station Nirmand, when a motorcycle came from Bagipull side bearing registration No. HR-05T-9370. It was signaled to stop. The motorcyclist was asked to produce documents of the motorcycle. He was carrying a bag over his back. He disclosed his name as Ram Kumar, son of Shri Prittam Singh. On suspicion, the police sought option of the motorcyclist for his search either before the Magistrate or the Gazetted Officer. The motorcyclist opted for his search by the police. Thereafter, the police personal offered their search to the accused. The bag carried by the motorcyclist was searched. The Charas was found wrapped in a polythene in the bag. It weighed 3 kg. 500 grams, out of which, two samples of 25 grams each were drawn which were put into different packets and the remaining Charas was put into a different packet. Thereafter, it was taken into possession in the presence of the witnesses after drawing specimen impression of the seal used and filling up the N.C.B. form. The motorcycle alongwith documents were taken into possession. Thereafter, a rukka was sent to the Police Station for the registration of F.I.R.. The samples were sent to the State Forensic Science Laboratory. It was found to be the mixture of cannabis. After completing all the codal formalities, the challan was put up against the appellant.

The prosecution has examined ten witnesses in all to prove its case. The statement of the appellant was also recorded u/s 313 of the Criminal Procedure Code. He has denied the allegations of the prosecution. The appellant has examined in his defence DW SI Vidya Chand, who has proved on record copy of F.I.R. No. 87/2008 Ex. DW-1/A and DW-2 Shri Puran Chand, Pradhan Gram Panchayat, Bhalsi. Learned trial Court convicted and sentenced the appellant, as noticed above on 23.10.2010. Hence this appeal.

Mr. Vijay Chaudhary, learned counsel for the appellant has strenuously argued that the prosecution has failed to prove the case against the appellant.

Mr. R.K. Sharma, learned Senior Additional Advocate General has supported the judgment dated 23.10.2010 passed by the learned trial Court.

We have heard the learned counsel for the parties and gone through the records carefully.

PW-1 Constable Amar Singh has testified that he was member of the police party headed by ASI Jagat Singh. Constable Puran Mal and Homeguard Tilak Raj were also the members of the patrolling party. The vehicle was driven by Constable Tikkam Singh. The police party saw a Motorcycle coming from Bagipull. The motorcyclist was asked to stop the motorcycle. His documents were searched. He was carrying a bag over his back. ASI Jagat Singh has asked to find out the independent witnesses. However, no independent witnesses were available. A.S.I. Jagat Singh apprised the appellant of his right for his search either before the Magistrate or the Gazetted Officer. The appellant gave his consent for search before the police vide memorandum Ex. PW-1/A. The bag was searched and on search, Charas wrapped in polythene was found. It weighed 3kg. 500 grams, out of which, two samples of 25 grams each were drawn separately and put into different packets duly sealed with seal ''A''. The remaining Charas was put into a separate packet alongwith bag duly sealed with seal ''A'' and the specimen impression of the seal was drawn and N.C.B. form was filled in. The remaining Charas was taken into possession vide seizure memo Ex. PW-1/C over which he has signed at encircled portion ''A''. According to him, Constable Tikkam Singh and appellant also signed the seizure memo.

PW-2 Constable Tikkam Singh has stated that he was also member of the patrolling party headed by ASI Jagat Singh alongwith Constable Puran Mal and HHG Tilak Raj. When they reached in the official vehicle at Dhanudhar, they saw a motorcyclist coming from the opposite side bearing registration No. HR-5T-9370. The motorcycle was stopped and the motorcyclist was asked to show the documents of the vehicle. The appellant was apprised of his right for search either before the Magistrate or the Gazetted Officer. He opted to be searched by the police vide memorandum Ex. PW-1/B. The bag was searched and Charas was found wrapped in a polythene packet. It weighed 3kg. 500 grams, out of which, two samples of 25 grams each were drawn and put into two separate packets duly sealed with seal ''A''. The bulk Charas was put into a separate packet alongwith polythene and bag and duly sealed with seal ''A''.

PW-3 Constable Puran Mal Bisht has testified that he was also member of the police party when the motorcycle was intercepted at Dhanudhar. The bag was searched after completing all the codal formalities. It weighed 3kg. 500 grams. He supported the statements of PW-1 and PW-2 the manner in which the samples were drawn.

PW-4 HC Sohan Lal has stated that Special Report Ex. PW-4/B, copy of which is Ex. PW-4/C was received in the office through Constable Amar Singh and the entry was incorporated in the register, the extract of which is Ex. PW-4/A.

PW-5 Head Constable Lal Chand has registered the F.I.R. Ex. PW-5/A after receiving rukka through Constable Puran Mal on 24.10.2010. He has also testified that ASI Jagat Singh deposited sealed parcels of the case property and sample in the Malkhana, the entry of which was incorporated in the Malkhana register vide Ex. PW-5/C. He further stated that on 26.10.2008, vide R.C. No. 54/2008, he handed over the sample part alongwith N.C.B. form, specimen impression of the seal, copy of F.I.R. to Constable Rohit Verma to be handed over at State Forensic Science Laboratory, who brought the receipt over the R.C. after depositing the same. The copy of R.C. is Ex. PW-5/D

PW-6 Constable Rohit Verma has testified that he has deposited the samples at State Forensic Science Laboratory and brought the receipt after depositing the same. The samples were handed over to him on 24.10.2008.

PW-7 Constable Mohinder Singh has proved the daily diary No. 14, dated 24.10.2008 and daily diary No. 30, dated 24.10.2008, Ex. -PW-7/A and Ex. PW-7/B.

PW-9 Constable Nanak Chand has brought the report of the State Forensic Science Laboratory Ex. PW-9/A alongwith copy of N.C.B. form Ex. PW-9/B and the sealed exhibits from State Forensic Science Laboratory and handed over the same to MHC Lal Chand. He has also stated that during his possession, no tampering was done to the sealed exhibits.

The case was investigated by PW-8 ASI Jagat Singh. He has also corroborated the statements of the witnesses discussed hereinabove. According to him, the motorcycle was intercepted on 24.10.2008. He has apprised the appellant of his right to be searched either before the Magistrate or the Gazetted Officer. The motorcyclist opted for his search before the police vide memorandum Ex. PW-1/A. Thereafter, the search of the bag was conducted. It contained 3kg. 500 grams Charas, out of which, two samples of 25 grams each were drawn. These were put into two separate packets duly sealed with seal ''A''. The N.C.B. form was also filled in. The remaining Charas was put into a different packet duly sealed with seal impression ''A''.

Now, as far as the association of independent witnesses at the time of search is concerned, it has come in the statement of PW-1 Constable Amar Singh that there was no village situated alongwith road from Nirmand to Dhanudhar, where the appellant was intercepted. He has denied the existence of any house on the road side where the accused was intercepted. The statement of PW-1 has been corroborated by PW-2. He has also stated that neither there was any village nor house where the appellant was intercepted. PW-3 Constable Puran Mal Bisht has stated in his cross-examination that there was no village alongwith road at Dhanudhar. PW-8 ASI Jagat Singh has stated that he has deputed Constable Puran Mal to associate independent witness from the locality. He informed him that no independent witnesses were available surrounding the place where the appellant was apprehended. DW-2 Shri Puran Chand, Pradhan Gram Panchayat, Basli has admitted in his cross-examination that from Dhanudhar bus stop, village Dhankapaad is not visible.

Ordinarily, the police should associate independent witnesses, but, in the present case, despite best efforts made by the police party, the independent witnesses could not be associated. The version of the police officials inspire confidence and their statements have not been shattered in the cross-examination. The samples were sealed strictly in accordance with law. The samples were intact when reached the State Forensic Science Laboratory. It has come in the statements of witnesses that till the samples were in their possession, these were not tampered with. It has come in the report Ex. PW-8/A, dated 22.11.2008 that the sample contained cannabis. The remaining contraband was also examined vide report Ex. PW-9/A. It was found to be Charas. The resin contained was observed to be 33.55% in the sample and 31.21 in the remaining contraband. It was more than commercial quantity.

PW-10 HHC Diwan Singh has testified that on 27.02.2010, MHC Lal Chand handed over to him one parcel containing bulk Charas and another sealed parcel containing sample parcel duly sealed with the seal of the Court to be delivered at State Forensic Science Laboratory alongwith NCB form vide RC No. 14/2010, copy of which is Ex. PW-10/A. He deposited the same and brought the receipt. He has also testified that during his possession, no tampering was done to the sealed exhibits.

Mr. Vijay Chaudhary, learned counsel for the appellant has argued that the contraband seized was weighed 3kg. 500 grams, but as per the reports of the State Forensic Science Laboratory, it weighed 2.87 kg.. The weight could reduce with the passage of time. Initially, the contraband was weighed on 24.10.2008 and thereafter, it was again weighed in the Forensic Science Laboratory on 22/23.03.2010. The reason for decrease in the quantity could be that in the F.S.L., the contraband was weighed in the electronic balance and initially contraband was weighed in the traditional scale. What emerges from the observations and discussions made hereinabove, is that the prosecution has proved the case against the accused. Consequently, we will not interfere in the well reasoned judgment of the trial Court. Accordingly, there is no merit in this appeal and the same is dismissed.