Shri Surinder Kumar vs State of Himachal Pradesh

Dev Darshan Sud, J.—The appellant has challenged his conviction u/s 20 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the NDPS Act). The prosecution case is that PW6 HHC Tek Chand, PW7 S.I. Lal Singh, ASI Man Singh, C. Lachhman Dass and HHG Amar Singh were on patrolling duty on 15.12.2008 in a police vehicle. The accused was seen coming from Banjar side and was carrying a black bag on his right shoulder. On seeing the police, he got perplexed and frightened and tried to escape but was apprehended by the police. On inquiry, he revealed his name as Surinder Kumar son of Kurdia Ram. The prosecution case is that the place was a lonely spot and as such no independent witnesses could be associated. ASI Man Singh and HHC Tek Chand, PW6 were associated as witnesses. The accused informed that there was reasonable suspicion that he was carrying contraband and in this eventuality he had a legal right of being searched either by the police, gazetted Officer or Magistrate. The accused consented to be searched by the police. Memo Ex.PL was prepared and the signatures of witnesses were obtained thereon. The prosecution proceeded with the procedure of search and sealing of the sample, recording of the statements of the witnesses which reveals compliance of provisions of the NDPS Act. The sample of charas recovered was sent for chemical analysis. Ex. PT, report of the FSL states that the sample was found containing 42.67% resin content. On the evidence on record, the learned trial Court concluded that the accused was in conscious possession of the charas and was accordingly sentenced to undergo five years rigorous imprisonment with fine of Rs. 50,000/-.

The findings of the learned Court below have been challenged on number of grounds, namely, that (a) the conviction has been based solely on the testimonies of the police witnesses which is illegal, no independent witness has been associated with the search and in this eventuality, the evidence of the prosecution cannot be relied upon; (b) that there are material discrepancies and contradictions in the statements of the police witnesses and that the rukka Ex.PQ itself falsifies the case of the prosecution and (c) there is violation of Section 55 of the NDPS Act and in this eventuality, when all the three factors are taken together no conviction can be recorded against the accused.

Adverting to the first submission with respect to the reliability of the evidence of the police witnesses, It has been held more then once that merely because the prosecution case consists of police witnesses is no reason to disbelieve their evidence. It is not the rule of law that police officials do not state the truth and are only interested in securing conviction of the accused by hook or by crook. This principle has been settled in a long line of decisions of the Supreme Court inter alia in Anil alias Andya Sadashiv Nandoskar Vs. State of Maharashtra, , Pattu Lal Vs. State of Punjab, , Balbir Singh Vs. State, , Girja Prasad (Dead) by LRs. Vs. State of Madhya Pradesh, and Aher Raja Khima Vs. The State of Saurashtra, . Conviction can be based on the evidence of the police officials though the rule of prudence requires a careful scrutiny of the evidence. Mere non-association of independent witnesses is not fatal to the case of the prosecution more especially when such witnesses are not available (See Ajmer Singh Vs. State of Haryana, . It is not expected that the prosecution/police should wait for some independent witnesses to pass by in an isolated place and associated with the search before further proceedings are resorted to. The evidence on record clearly indicates that the place where the accused was intercepted was an isolated place and in this eventuality no independent witness was available. This fact has been considered by the learned trial Court which holds that the testimony of HHC Tek Chand, PW6 is corroborated on all material particulars by ASI Lal Chand, PW7. In cross-examination of these witnesses, I am unable to ascertain any fact with respect to the submission made that deliberate attempt has been made to keep away independent witnesses or that there were independent witnesses available, who have not been associated during the course of search of the accused. This submission is rejected.

On the second aspect that rukka Ex.PQ is an eye wash, I have perused rukka Ex.PQ and I have not found any fabrication in this document. FIR No. 144 of 2008, 15.12.2008 has been registered on the basis of Rukka, Ex.PQ on the same date in police station, Kullu. On the third aspect that there are material contradictions in the testimonies of the witnesses, the law is now well settled that minor contradictions in the statements of the witnesses do not destroy the edifice of the prosecution case. On going through the statements of the witnesses, I do not find any major contradictions in their testimonies (a) on the fact that the accused was present at the spot where he was apprehend, (b) searched and the contraband was recovered from him and seized. Considered from any angle, I do not find that the appellant herein has been able to make out a case for acquittal.

In these circumstances, I find no merit in this appeal which is accordingly rejected.

Adverting to the question of sentence, learned counsel appearing for the appellant submits that sentence of five years has been imposed on the appellant and that the interest of justice would be served in case it converted into the imprisonment already undergone by him. This submission is opposed by learned Additional Advocate General on the ground that large quantity of charas has been seized from the appellant and in that eventuality the sentence should and ought to be more. I note that no appeal has been preferred by the state against the sentence imposed upon the appellant by the learned trial Court. In Dharam Pal versus State of H.P., Latest HLJ 2007 (HP) 827 this Court holds that while determining the quantity, the resin contents has to be taken into consideration. This judgment still holds the field.

In these circumstances, I direct that the sentence of imprisonment be reduced to one already undergone by the accused/appellant which in this case as accepted by the counsel is 3 1/2 years. I further direct that he shall further pay an additional fine of Rs. 30,000/- which shall be deposited by him before the learned trial Court within two months from the date of his release, failing which he shall undergo the imprisonment already imposed upon him by the learned trial Court. The appellant/accused shall be released from custody forthwith, if he is not wanted in any other case. All pending miscellaneous applications also stand disposed of.