State Of H.P vs Ram Parkash

Tarlok Singh Chauhan, J

The State has filed the instant appeal for\ enhancement of sentence of the respondent. The case of the prosecution as unfolded during the course of trial was that on 03.11.2004, Investigating Officer, SI Sohan Singh (PW-7) alongwith HC Sanjeev Kumar, LC Vandana, HHC Sadanand and HHC Bhuri Singh were on traffic checking and Naka duty at Khoti Nala, as were deputed by SI Dabe Ram. After formal traffic checking, at about 02:00-02:30 p.m., they came back from Khoti Nala and alighted the bus and got down near Doghara. When the Police Party was proceeding from tunnel to Aut, then they noticed that a person was coming from opposite side, who was carrying a carry bag in his hand. Khekh Ram (PW-1) admitted the Police Party on the way back and he too was associated with the Police Party.

On seeing the police, the said person tried to turn back and escape from the spot. However, he was nabbed by the Police Party. On being enquired, he disclosed the name as Ram Prakash and upon search of the carry bag, it was found containing another polybag and during the course of search of the said polybag, charas, in the shape of sticks was recovered. HHC Sadanand was deputed to arrange for weights and scales, who provided the same from nearby shop. The recovered charas was weighed on the scale, which found to be 1 Kg. Two samples of 25 grams each were separated by the Investigating Officer, who then, put them in parcels and sealed with seal “S” at five places each, whereas, the remaining charas alongwith polybag was put in a parcel and sealed with “S” at seven places. The specimen seal “S” was also taken as Ex.PF and Ex.PF/1. The seal “S” after use was given to Khekh Ram (PW-1). Thereafter, the case property was taken into possession vide recovery memo Ex.PA. The search and seizure memo Ex.PB and attachment form Ex.PC were prepared, which were duly signed by the respondent, Khekh Ram and LC Vandana. A copy of the same was given to the respondent free of cost.

Thereafter, the respondent was formally arrested vide memo Ex.PE and was apprised of the grounds of arrest vide memo Ex.PD. The wife of the respondent was informed telephonically regarding his arrest. The Investigating Officer also obtained receipt of telephonic calls Ex.PM. He sent Rukka Ex.PS, through HHC Sadanand, for registration of the case, who brought the case file back and handed over the same to the Investigating Officer on the spot. The Investigation Officer prepared site plan Ex.PN and also prepared the marginal notes at the spot. He recorded statements of witnesses, including Khekh Ram (PW-1) and filled-in columns of NCB form Ex.PJ/1 and specimen seal of “S” was also embossed on the said form. He produced the case property alongwith respondent before SI Dabe Ram and NCB form, specimen seal “S” alongwith other documents. SI/SHO Dabe Ram also re-sealed the case property with seal “T” and took the specimen of seal “T” on NCB form Ex.PJ/1. After re-sealing the case property, the same was deposited with MHC Raj Kumar (PW-5) alongwith NCB form and specimen seal “T”, who entered the same in Malkhana Register Ex.PF. He handed over the sealed parcel, sample seal etc. to HHC Munshi Ram (PW-4), which he took to CTL Kandaghat on 02.06.2004 and on back journey returned the receipt to MHC.

On 04.11.2004, the Investigation Officer got the respondent medically examined, vide application Ex.PP and MLC Ex.PQ. He also prepared and sent the special report Ex.PG, through LC Vandana Devi, for delivering the same to the Superintendent of Police, Mandi. The same was received by HC Man Singh (PW-6), who was working as an Assistant Reader in the office of the Superintendent of Police, Mandi, at the relevant time. He made entry of the above report in register at Serial No.20 and also made endorsement on the said report. After receipt of Chemical Examiner Report Ex.PJ, the challan was presented in the Court, a copy thereof was supplied to the accused, respondent herein, and on finding the prima-facie case, the respondent was charged for offence punishable under Section 20 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (for short ‘the Act’), to which he pleaded not guilty and claimed trial.

The prosecution, in support of its case, examined Khekh Ram (PW-1), LC Vandana (PW-2), Chuni Lal (PW-3), Munshi Ram (PW-4), HC Raj Kumar (PW-5), HC Man Singh (PW-6), Sohan Singh (PW-7) and SI Dabe Ram (PW-8). The respondent thereafter was examined under Section 313 of the Code of Criminal Procedure and all the material as well as incriminating substance was put to the respondent. The respondent denied most of such circumstances, however, did not choose to examine any witness in defence.

The learned Special Judge after evaluating the evidence on record, convicted the respondent under Section 20 of the Act and sentenced him to undergo rigorous imprisonment for two years with a fine of Rs.20,000/- and in case of default of payment of fine, further to undergo three months’ imprisonment.

Aggrieved by the inadequacy of sentence, the State has filed the instant appeal for enhancement of sentence.

At the outset, it needs to be noticed that the learned Special Judge has imposed a sentence of two years’ rigorous imprisonment, only because the Chemical Examiner had found the sample to be containing 34.80% resin and that there was nothing in the report as to what the remaining residue was. He further relied upon the judgment of this Court in Gulam Rasool Versus State of H.P., 2007 Supp. Cur. LJ 179 (H.P.), Ramesh Lal Versus State of H.P., 2007 Supp. Cur. LJ 460 (H.P.) and Om Prakash Versus State of H.P., 2007 Supp. Cur. LJ 539, wherein it was held that it is the percentage of the resin contained in charas, which would be a determining factor to ascertain the quality of charas. Having regard to the ratio of law propounded in the aforesaid judgments, the ownership of the quantity of charas comes to only 348 grams, i.e. more than small and less than commercial. However, the judgments as referred to above are no longer good law in view of the judgment rendered by Hon’ble Three-Judge Bench in case of Hira Singh and another Versus Union of India and another, (2020) 20 SCC 272, wherein the Hon’ble Supreme Court has categorically held that the total quantity of the mixture which includes the neutral substance, ought to be relevant for the purpose of sentencing. This judgment, in turn, has been relied upon by a Bench of Three Hon’ble Judges in Raveen Kumar Versus State of Himachal Pradesh, AIR 2020 SC 5375.

Similar reiteration of law can be found in one of the very recent judgments of the Hon’ble Supreme Court in State of Himachal Pradesh Versus Nirmal Kaur alias Nimmo and Others, 2023 CRI. L. J. 532: AIR Online 2022 SC 1079. Clearly therefore, the sentence as imposed by the learned Special Judge is grossly inadequate and may be required to be enhanced.

However, since this appeal is for enhancement of sentence, therefore, the respondent under Sub-Section 3 of Section 377 of the Criminal Procedure Code has every right to plead for his acquittal or for reduction of his sentence.

It is in furtherance of such right when the learned counsel for the respondent would argue that firstly the independent witness has not supported the case of the prosecution, therefore, there was reasonable apprehension that the respondent had been falsely implicated and moreover, the arrest memos do not reflect that any option or choice was given to the respondent before his personal search was undertaken. Even though, the personal search did not result in recovery of any contraband for non-compliance of requirement of affording an option, could not be undermined. In support of his contention, strong reliance is placed upon the judgment rendered by Three Hon’ble Judges of the Supreme Court in Sanjeev Kumar and Another Versus State of Himachal Pradesh, (2022) 6 Supreme Court Cases 294, more particularly, para-10 thereof, which reads as under:-

“10. We have checked the original record to satisfy ourselves. Exts. PW 8/B, PW 8/C, PW 8/D and PW 8/E, which are arrest memos, do not reflect that any option or choice was given to the accused before their personal search was undertaken. It is true that the personal search did not result in recovery of any contraband material but the non-compliance of requirement of affording an option, was one of the reasons which weighed with the trial court in disbelieving the case of the prosecution.”

On the other hand Mr. J.S. Guleria, learned Deputy Advocate General would argue that apart from the reasons which have weighed with the learned Special Judge for convicting the respondent, the instant is a case of chance recovery, wherein the recovery has been affected from the carry bag of the respondent and not from his personal search. Therefore, compliance of Section 50 of the Act is not required to be complied with. In addition thereto, he would argue that there is nothing to warrant that the conviction cannot be sustained on the testimony of the police witnesses alone.

We have considered the rival submissions of the parties and have gone through the records of the case.

It would be noticed that fate of the prosecution case primarily rests upon the statement of SI Sohan Singh (PW-7) and LC Vandana (PW-2) as well as the independent witness Khekh Ram (PW-1) who was present at the spot when the respondent was nabbed.

Now, adverting to the testimony of PW-1 Khekh Ram. In his examination-in-chief he has stated that he was a Chowkidar at Gram Panchayat Aut and had been effecting the service of summons in the cases. On 03.11.2004, he had gone to Police Station, Aut, so as to collect summons. He was asked by the police to send documents as police told him that some charas has been recovered from some person. He signed the documents and came back with the summons.

At this stage, PW-1 was declared hostile and in cross-examination by the Public Prosecutor, stated that he had studied upto 3rd Class. He could read and write Hindi. He denied that on 03.11.2004 at about 03:00 p.m., he was coming from Thalaut, after effecting service of summons and on the road, police officials had met him. He also denied that in the meantime, a person came from opposite side, who was carrying a bag on his right hand and on seeing the Police Party, he tried to flee away from the spot. He also denied the suggestion that the police chased the said person and nabbed him. On being enquired, he disclosed his name as Ram Prakash, son of Bhag Chand, R/o Karsed. He voluntarily stated that that the incident had taken place long back and, therefore, could not remember the details. He further denied the recovery of the polybag or the charas contained therein.

He also denied taking of samples and the sealing of the case property. However, he did not deny the signatures on seizure memo Ex.PA, search and seizure forms Ex.PB, attachment form Ex.PC, memo of grounds of arrest Ex.PD, memo of arrest forms (two leaves) Ex. PE. He admitted that LC Vandana also signed the same memos. However, voluntarily stated that these were signed in the Police Station. He admitted that he had not been put under any fear or threat by the police before obtaining the signatures on the above memos. He further admitted that he had not made any complaint to any authority or officer regarding wrongful obtaining of the signatures on the said papers. He admitted that memos were already written when he put his signatures. He also admitted that the contents of the memos were read over to him before obtaining his signatures. The witness was put a Court question, “Whether the accused was present in the P.S. when his signatures were obtained?” The Court had noted his demeanour by recording that the witness has taken two minutes to reply the question and stated that the incident had taken place long back, as such, he could not re-collect whether the accused was same person or not. He admitted that the copy of memo of arrest Ex.PD was given free of cost to the accused, who told the police to inform his wife regarding the above case. He admitted his signatures on the specimen of seal “S”, Ex.PF. He denied that his statement had been recorded by the police.

Now, adverting to the testimony of PW-2 LC Vandana No.351. She has duly supported the case of the prosecution by narrating exactly what has been reproduced here-in-above. So, no fruitful purpose would be served in extracting her statement and we rather proceed to go by the cross-examination. In cross-examination, this witness stated that the Police Party had gone towards Khoti Nalla for traffic checking and Nakka purpose. The police did not have any prior information of this case. The Police Party had gone in a bus towards Khoti Nalla, which was at a distance of 15 Kms. or more from Aut. The Police Party did not check any vehicle while on the way towards Khoti Nalla from Police Station, Aut. She categorically stated that her mention of patrol duty was there in the departure report. She stated that the police conducted traffic checking at Khoti Nalla for some time and thereafter came in a vehicle and got down near Aut Tunnel.

The place of incident was about ½ Km. from the end of the then short tunnel. She denied the suggestion that when respondent was nabbed by the police at spot, the Police Party was having definite information that the respondent was carrying contraband in the bag. She stated that PW-1 Khekh Ram was present throughout the proceedings, which were conducted at the spot by the police for about 2-3 hours. She admitted that during this period many persons passed through that road. She claimed that the Investigating Officer tried to join 1-2 witnesses, however, the persons refused to come witnesses as they stated that charas was not recovered in their presence. The other general suggestions regarding nothing being recovered from the accused not carrying this contraband, etc. were denied by the witness.

Now, adverting to the testimony of PW-7, it was noticed that he is the Investigating Officer and has deposed exactly what has been extracted in the prosecution story. Therefore, hereto the Court shall proceed to see whether anything fruitful has been extracted by the respondent in the cross-examination. In cross-examination, the witness stated that the Police Party had started from Police Station at 10:00/11:00 a.m. and Khoti Nalla was at a distance of about 16-17 Kms. from Aut. It took them half an hour to reach at Khoti Nalla in a bus from the Police Station and checking of vehicles was done for about two and half hours. On that date no other case except the present one was registered. PW-1 joined the Police Party at Village Doghara. He admitted that when the accused (respondent herein) tried to escape from the spot, he got suspicion that he was carrying some contraband. The respondent was noticed at a distance of 20-30 feet and the respondent could hardly cover 15-20 steps by turning back and then he was nabbed by the police. He had not conducted personal search of the respondent. Only search of the bag was conducted. In fact, he caught hold of the respondent first. All the members of the Party were running after the respondent. It took about one hour to complete the proceedings on the spot. He admitted that place of incident was NH-21. However, he denied that during this period of one hour many persons passed through the road. He admitted that there were two-three Bihari labourers, however, they were not understanding local language, as such, they were not joined as independent witnesses. They were in fact reluctant to join as witnesses. He denied the suggestion that independent persons were available on the spot and request was made to join as witnesses, but they categorically stated that nothing had been recovered from the respondent in their presence, as such, they could not be witnesses to any fake recovery. The Police Party reached Police Station, Aut, at about 04:30 p.m. He denied the suggestion that Khekh Ram (PW-1) was told to come to Police Station, Aut, and was directed to sign various memos in Police Station Aut. He further denied the suggestion that charas was not recovered from the respondent in presence of Khekh Ram or Khekh Ram was never met them on the spot. He further denied the suggestion that the bag containing charas was not in possession of the respondent. He denied that the charas was not recovered from the bag of the respondent. He also denied the suggestion that the respondent had been falsely implicated.

Having gone through the aforesaid testimonies, it would be clear that no doubt PW-1 Khekh Ram, who was joined by the police has turned hostile, but it is clear from his testimony that he admitted his presence and the presence of the respondent at the spot and has also acknowledged his signatures on various documents. He has also admitted that these documents were sent by LC Vandana (PW-2), which were prepared at the spot. He admitted that he was not put to any fear or threat before obtaining the signatures on memos Ex.PA to Ext.PE. He has further admitted that the memos were already written when he put signatures and the contents of the memo were read over to him before his signatures.

As observed above, the Court has also noticed that demeanour of this witness, who took two minutes time to answer the questions, which in itself is a clear indication that he (Khekh Ram) was out to help the respondent.

In this background, adverting to the first contention of the respondent that conviction could not have been based on the testimony of the official witnesses alone. The question need not to detain us any longer in view of what has been observed by the Hon’ble Supreme Court in a recent judgment in case of Sathyen Versus State of Kerala, 2023 INSC 703 decided on 11th August, 2023, wherein, it was observed as under:-

“22. Conviction being based solely on the evidence of police officials is no longer an issue on which the jury is out. In other words, the law is well settled that if the evidence of such a police officer is found to be reliable, trustworthy then basing the conviction thereupon, cannot be questioned, and the same shall stand on firm ground. This Court in Pramod Kumar v. State (Govt. of NCT of Delhi)10

This Court, after referring to State of U.P. v. Anil Singh [1988 Supp SCC 686 : 1989 SCC (Cri) 48] , State (Govt. of NCT of Delhi) v. Sunil [(2001) 1 SCC 652 : 2001 SCC (Cri) 248] and Ramjee Rai v. State of Bihar [(2006) 13 SCC 229 : (2007) 2 SCC (Cri) 626] has laid down recently in Kashmiri Lal v. State of Haryana [(2013) 6 SCC 595 : 2013 AIR SCW 3102] that there is no absolute command of law that the police officers cannot be cited as witnesses and their testimony should always be treated with suspicion. Ordinarily, the public at large show their disinclination to come forward to become witnesses. If the testimony of the police officer is found to be reliable and trustworthy, the court can definitely act upon the same. If, in the course of scrutinising the evidence, the court finds the evidence of the police officer as unreliable and untrustworthy, the court may disbelieve him but it should not do so solely on the presumption that a witness from the Department of Police should be viewed with distrust. This is also based on the principle that quality of the evidence weighs over the quantity of evidence.

Referring to State (Govt. of NCT of Delhi) v. Sunil11, in Kulwinder Singh v. State of Punjab12 this court held that: - "23... That apart, the case of the prosecution cannot be rejected solely on the ground that independent witnesses have not been examined when, on the perusal of the evidence on record the Court finds that the case put forth by the prosecution is trustworthy. When the evidence of the official witnesses is trustworthy and credible, there is no reason not to rest the conviction on the basis of their evidence."

We must note, that in the former it was observed:-

"21. At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature... If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery.

But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions."

Recently, this Court in Mohd. Naushad v. State (NCT of Delhi13) had observed that the testimonies of police witnesses, as well as pointing out memos do not stand vitiated due to the absence of independent witnesses.

It is clear from the above propositions of law, as reproduced and referred to, that the testimonies of official witnesses can nay be discarded simply because independent witnesses were not examined.”

Thus, what can be deduced from the aforesaid exposition of law is that the testimony of police personnel should be treated in the same manner as the testimony of any other witness and there is no principle of law that without collaboration by independent witnesses their testimony cannot be relied upon, provided the same inspires confidence, because the law requires the statement of official witnesses should be examined with care and caution before placing blind reliance upon them. However, the statements of official witnesses cannot be discarded purely on the ground that such witnesses are official witnesses. It is the intrinsic worth of the statement of the official witnesses which is to be tested on the touchstone of credibility and truthfulness, which will have been on the case of the prosecution.

Judged in light of the aforesaid exposition of law, when the statements of Sohan Singh (PW-7) and LC Vandana (PW-2) along with statement of independent witness Khekh Ram is evaluated, the Court has no hesitation to conclude that the prosecution has duly proved its case beyond reasonable doubt. It is clear from the perusal of Rapat No.11 Ext.PK when the Police Party headed by SI Sohan Singh had left the police station at 10:30 a.m. in connection with patrol and detection of crime towards Dawara, Thalaut, Khoti Nalla etc. Thereafter, the sequence of events, as demonstrated by PW-2 and PW-7, and in cummulative reading with the testimony of independent witness, who was to prove that it was Sohan Singh who was heading the patrolling party at the time of Nakka and on seeing the Police Party, the respondent turned back and tried to escape from the spot. However, he was chased and ultimately nabbed. The respondent was carrying a carry bag in his hand, which was containing a polybag and on search of the same was found to be containing charas. The Investigating Officer had deputed HHC Sadanand to bring the scales and weights, who brought the same from the shop of Chunni Lal (PW-3). The Investigating Officer also completed all codal formalities on the spot regarding the preparation of the samples and sealing(s) of the same. It is thereafter that he sent Rukka through HHC Sadanand for registration of the case.

Now, adverting to the second contention regarding no option or choice having been given to the respondent before his personal search was undertaken. Suffice it so say that it is nowhere the case of the prosecution that the personal search of the accused had been conducted, rather it has specifically come in the statement of Sohan Singh (PW-7) in the cross-examination that no personal search of the respondent was conducted, which shall be apt to reproduce the relevant part of the statement, which reads thus:-

“I had not conducted the personal search of the accused. Only search of the bag was conducted.”

Therefore, even this contention of the respondent is without merit and the judgment relied upon by the learned counsel for the respondent in Sanjeev Kumar’s case (supra) is not applicable to the facts of the instant case.

In view of the aforesaid discussion, the appeal is allowed. The sentence as imposed by the learned Special Judge, relying upon certain judgments passed by this Court, which are no longer a good law in the light of the judgment rendered by the Hon’ble Supreme Court in the case of Hira Singh (supra), requires to be enhanced and the judgment passed by the learned Special Judge is accordingly modified.

Production warrant be issued against the respondent for his presence in this Court on 12th September, 2023, for hearing him on the quantum of sentence.