Ram Kumar vs State

G.S.N. Tripathi, J.—1st Additional Sessions Judge, Saharanpur, vide his judgment and order dated 28.10.94, convicted the accused Ram Kumar on the charge u/s 15, N.D.P.S. Act and sentenced him to undergo R.I. for a period of 10 years and also to pay a fine of Rs. 1 lakh. On failure to pay the fine, two years'' additional R.I. was awarded. The aforesaid judgment was passed in a Special Case No. 76/93, State v. Ram Kumar of district Saharanpur.

The prosecution case is unfolded in the recovery memo. Ex Ka-2 dated 6.7.92 prepared by S.I. Kamlesh Nambudi, P.W. 1. He has stated that in the night of 5/6.7.92, he was posted as S.I.P.S. Kotwali. In that night, he along with constable Mukesh Kumar. P.W. 2 started from the police station at about 1.45 a.m. in connection with patrol duty. On the way he checked Nehru Market and Pratap Market and thus reached near the Tiraha, which is near the Lai Medical Store. There he saw a person carrying a bag. Seeing the police personnel, he tried to take an about turn. Sri. Nambudi and his companions suspected. They chased the person and at a small distance, they overpowered him. It was around 3.45 a.m. He gave him name as Ram Kumar. He was given the option for his search to be made before a gazetted officer or a Magistrate at his choice. But he said that he did not need any of these officers for his search and was prepared to get him searched on the spot by the police people. By chance one Bhoora also arrived there. From the bag of the accused, 1-1/2 kg. of Doda (poppy straw) was recovered. The article was sealed on the spot. A memo was prepared. The accused failed to produce a licence for that. After completing the formalities the police party arrived at the police station on 6.7.92 at 5.15 a.m., after covering a distance of one km. The case was registered at the police station by C.W. 1 Constable Shanti Swaroop.

The investigation was carried by P.W. 3, M.M. Chaturvedi, who after interrogating the witnesses and preparing the site-plan, laid the charge sheet before the Court.

The prosecution examined P.W. 1 Kamlesh Nambudi. S.I. He has narrated the story as contained in the recovery memo. Constable Mukesh Kumar, P.W. 2 was also accompanying Sri. Nambudi. He has also given a similar statement.

C.W. 1 Constable Shanti Swaroop has proved the entries in the chik and G.D. P.W. 3 Sri. M.N. Chaturvedi has proved the investigation process from the beginning till end.

The accused in his statement u/s 313, Code of Criminal Procedure has denied the allegations against him and has said that on account of enmity, he has been falsely implicated. Nothing had been recovered from his possession.

The prosecution has relied upon the report of the chemical examiner Ex Ka 5, who has opined that the contents sent to him for examination was opium Doda Papaver somniferum. The analysis was done after applying chemical tests.

After examining the entire evidence and circumstances on the record, the learned lower Court concluded that the prosecution case was proved to the hilt and he convicted and sentenced the accused as noted above.

Feeling aggrieved, the accused has preferred this appeal. I have heard Sri. Awasthy for the Appellant and Sri. All Hasan, learned Counsel for the State at stretch and gone through the record. I find that there is absolutely no force in this appeal, and it deserves to be dismissed.

The fact that contraband article (poppy straw) was recovered from the possession of the accused in the night of 5/6.7.92 is proved from the statement of Nambudi, P.W. 1 and Sri. Mukesh Kumar, P.W. 2. Both of them have said that they were on patrol duty. They started from the police station at about 1.45 a.m. and after covering certain places, they reached the spot where the accused was spotted carrying a bag. They have been subjected to very gruelling cross-examination at the hands of very learned Counsel. But nothing material has been extracted on the basis of which their statements could be disbelieved. It was asked to Sri. Nambudi as to how he carried sealing materials, paper etc. He said that he carried the same as usual. It was all of a sudden that he saw the accused, who tried to run away after seeing the police party. Then he chased him. But when the accused tried to run away, he was overpowered and arrested. Bhoora, a public witness came there all of a sudden. He was returning from the railway station. Further, Sri. Nambudi says that the sample was not taken on the spot. But for the minor and insignificant differences between the statements of Nambudi and Sri. Mukesh Kumar, P.W. 2 as to what places they covered before coming to the said spot, no material contradiction has been extracted. The incident took place on 6th July, 92. The statements of witnesses were recorded in December, 94. Therefore, minor omissions and contradictions are bound to occur. Human memory is a treacherous friend. Arithmetical and chronometric precision cannot be obtained in all. The details we expect a witness never to depose in a parrot-like manner. Therefore, I reject the argument advanced by the learned Counsel that on the basis of these minor contradictions, the statements of both the witnesses on the point of recovery, be discarded. The learned lower Court has made an elaborate discussion in the body of the judgment and he has met all the arguments advanced on this point. I agree with the conclusions drawn by the learned Judge.

After the formalities on the spot were completed the police party came to the police station and reported the matter. C.W. 1 Shanti Swaroop prepared the chik and the G.D. at 5.15 on 6.7.92. On this point the statement of C.W. 1 Shanti Swaroop has not been challenged in the cross-examination. The result is that the time gap between the recovery at 3.45 a.m. and entry in the G.D. at 5.15 a.m. is so short that a false case could not be cooked up. The value of a prompt F.I.R. is a very immense and it can be usefully utilized for corroborative purpose. In this case, the F.I.R. is very prompt. Therefore, 1 do not agree with the learned Counsel that a false case has been planted against the accused.

Afterwards, the goods were sent to chemical examiner. His report Ex. Ka. 5 has been obtained. It has not been challenged except on the point that according to Sri. Awasthy, it was not poppy straw as found by the chemical examiner. This contention is not correct. Poppy straw has been defined in Section (XVIII), which is as below:

Poppy straw" means all parts (except the seeds) of the opium poppy after harvesting whether in their original form or cut, crushed or powdered and whether or not juice has been extracted therefrom.

So poppy straw in all its shapes, except seeds, is the property which is the subject matter of punishment u/s 15 of the N.D.P.S. Act. The learned Counsel''s contention is accordingly rejected that the recovered article was not poppy straw.

Learned Counsel further agrued that Bhoora has not been examined. Therefore, an adverse inference should be drawn against the prosecution. For that he has relied upon two rulings of the Rajasthan High Court. With due respect to the Hon''ble Judges, I find that the latest legal position is contained in Narain v. State of Punjab AIR 1959 SC 461. In that case, the apex Court held that when police witnesses were reliable, non-examination of public witnesses will not effect the merits of the case. The learned trial Judge has also relied upon this observation of the Hon''ble Supreme Court with due respect, I follow the same. The result is that this contention has no force.

The Court cannot start with a suspicious eye that the police witnesses must be always telling wrong. It is not the law of the land. Of course in a given circumstance if the witnesses do not say something which inspires intrinsic confidence, the Court may require further corroboration. But this is not the case here. Both the witnesses relied upon by the prosecution have given a consistent version. They had no enmity with the accused. It has not been even suggested or whispered. Then there is no reason for these witnesses to tell a lie and implicate the accused in a false case without any rhyme or reason.

A compliance of Section 50 of the N.D.P.S. Act has been fully made and the spirit of the observations contained in State of Punjab v. Balbir Singh. (1994) CriLJ 2 SC 108 has been fully honoured by the learned trial Judge.

Thus after an intensive scrutiny of the entire evidence and circumstances on the record, I find that the learned lower Court has properly analysed the case and has come to a right conclusion. There is no reason to differ from the conclusions drawn by the learned lower Court.

The appeal has no force. It is dismissed. The accused is already in jail.