Vikram Sood vs State of Himachal Pradesh

Surinder Singh, J.—The appellant hereinafter to be referred to ''the accused'' was convicted by the learned trial Court, for the offence punishable u/s 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985, in short ''the Act'', for allegedly for keeping in possession 7 Kgs. of "Poppy Husk", thus, he was sentenced to undergo rigorous imprisonment for a period of ''two'' years and to pay fine of Rs. 20,000/-, in default of payment of fine, he was also ordered to further undergo imprisonment for two months. The period of detention, if any undergone pre-trial and during the trial was ordered to be set off as per the provisions of Section 428 of the Code of Criminal Procedure. Hence, the challenge in the present appeal. Ms. Suman Thakur, learned Counsel for the accused vehemently argued that there has been noncompliance of Section 50 of the Act and further that the search and seizure of the alleged contraband was effected from the accused after Sun-set and further that there have been lot of discrepancies in the statements of the prosecution witnesses rendering the prosecution case a suspect, which entitles the accused for his acquittal.

In short, the accused was put on trial on the following allegations:--

(i) On 15.11.2008, PW9 ASI Balak Ram was heading a police patrol party, consisting of HC Rajinder Singh, Constables PW1 Surinder Kumar and PW2 Sunil Kumar. When they were present at Bedli near Gambher bridge on N.H. 21, around 6 p.m., they spotted the accused coming from the opposite side, carrying a green strips and black coloured bag on his shoulder. On seeing the police, he got scared and tried to run away but police nabbed him and asked his identity. In the meantime, PW3 Mehardeen came across the said place. He was also associated by the police as an independent witness.

(ii) Thereafter, on checking the bag in the presence of Mehardeen aforesaid and PW1 C. Surinder Kumar; 35 plastic packets containing "Poppy Husk" was recovered. On its weightment, it turned out to be 7 Kgs. (iii) After opening of the entire packets, they were mixed together, out of that two samples of 100 grams each were separated and sealed with seal impression ''A''. Remaining bulk was also sealed in the same bag in a cloth and six seals by the same seal and marked "A". The separate two samples were marked as Marks "A-1" and "A-2".

(iv) NCB forms in triplicate were filled in and the facsimile of seal used was affixed against the relevant column of the said forms. The sample of seal Ext.PW9/A was also taken on a piece of cloth and seal after use was handed over to PW3 Mehardeen.

(v) The case property was taken into possession vide seizure memo Ext.PW1/B signed by the witnesses aforesaid and one of its copy was supplied to the accused.

(vi) A Rukka Ext.PW8/A was sent through PW2 C. Sunil Kumar for the registration of the case on the basis of which FIR Ext.PW8/ B was formally registered.

(vii) Site plan Ext.PW9/B was prepared. Accused was arrested and grounds of arrest were informed to him in writing Ext.PW9/C.

(viii) The case property was produced before PW8 SI/SHO Sita Ram alongwith NCB forms in triplicate and the sample of seal. PW8 aforesaid resealed all the three parcels with his own seal impression ''T''. Its sample was also taken on a piece of cloth Ext.PW8/ D. The facsimile of seal was also affixed on the NCB forms. Resealing memo Ext.PW8/F was prepared and the case property was deposited with PW7 MHC Ram Prakash alongwith sample of seal and the NCB forms which was entered by him in the Malkhana Register, a copy whereof is Ext.PW7/A.

(ix) Report with respect to the search and seizure was sent to the S.P. concerned within the statutory period.

(x) PW7 MHC Ram Prakash sent the sample Mark A-1, alongwith sample seals, NCB forms in triplicate, copies of the FIR, seal memo and police docket through PW4 C. Balbir Singh, for its deposit in the Forensic Science Laboratory, Junga vide R.C. No. 262 of 2008. After its deposit in the Laboratory, receipt was issued to which he deposited with the MHC on his return.

(xi) On examination in the Laboratory, the Assistant Chemical Examiner opined that the said exhibit Mark A-1 is the sample of ''Poppy Straw'' containing presence of Morphine, Codeine, Papaverine and Meconic Acid and the tests identified the presence of Opium Poppy (Papaver Somniferum) species in the sample. The packet was resealed with the specimen of seal of the FSL and returned to the concerned Police Station. The report is Ext.PW9/E.

After completing the challan, it was presented for the trial of the accused. The accused was accordingly charge-sheeted for the offence aforesaid, to which he pleaded not guilty and claimed trial.

To prove its case, prosecution examined its witnesses. Accused was also examined u/s 313 of the Code of Criminal Procedure. His case was denial simplicitor, however, he took up the stand in the cross-examination of the witnesses that he was running a Dhaba, police witnesses used to take free food in his Dhaba. The bag was found abandoned and the police foisted a false case upon him. However, when called upon to enter into his defence, he did not lead any evidence to probablise the defence. As such, relying upon the prosecution witnesses, the learned trial Court convicted and sentenced the accused as aforesaid, hence challenge in the present appeal.

In reply to the arguments of the learned Counsel for the accused, Shri P.M. Negi, learned Deputy Advocate General submitted that it is a case of recovery of contraband from the bag of the accused to which he Was carrying, as such there is no need of compliance of Section 50 of the Act. It is also argued that there are no material discrepancies in the statements of the prosecution witnesses which give rise to doubt. It is further ventilated that there is nothing on record that the alleged recovery was conducted after Sun-set. According to him, the recovery stands proved and no prejudice is shown to have been caused to the accused, therefore, there is no ground to interfere with the impugned judgment of conviction and sentence.

On the legal scrutiny of the above contentions and on reappraisal of the evidence, I find good deal of substance in the submissions made by Shri P.M. Negi, learned Deputy Advocate General to conclude that there is no latent or patent defect in the impugned judgment of conviction and sentence and the appeal filed by the accused deserves to be dismissed.

PW9 ASI Balak Ram while corroborating the case of the prosecution Stated about the recovery of the contraband from the bag of the accused to which he was carrying in the presence of PW3 Mehardeen and PW1 C. Surinder Kumar, (ii) PW1 C. Surinder Kumar has supported the version of PW9 aforesaid qua the recovery. Although PW3 Mehardeen disputed the recovery from the accused, as such he was declared hostile, but in the cross-examination conducted by the learned Public Prosecutor he admitted that he knew the accused who used to run a Dhaba in village Bedli where he had been taking tea etc. earlier and also admitted about the recovery of the contraband aforesaid on that day from a person, who, on seeing the police had thrown it on the road, but denied that it was the accused. As already stated above the accused was well known to him and he has reason to support him. Further, in the cross-examination conducted by the learned Public Prosecutor, he admitted that the envelopes which were containing "Poppy-Husk" were recovered, weighed, mixed and thereafter two samples of 100 grams each were separated which were sealed with seal impression ''A'' and the remaining bulk was also sealed with the same seal by making parcel with six seal affixed thereon. He also admitted about taking of sample of seal on a piece of cloth and its recovery vide seizure memo Ext.PW1/B in his presence. During the trial, he identified the bulk parcel Ext.P1, sample parcels Exts.P5 and P6 and bag Ext.P2 and the empty 35 plastic packets Ext.P4.

On the close scrutiny of the aforesaid evidence, I find that the statement of PW3 affords corroboration to the case of prosecution. There is nothing to doubt the official witnesses. PW3 Mehardeen fully knew that it was the accused Vikram Sood, who was involved in the present case. All the documents were admittedly executed in his presence on the spot which were signed by him. It clearly and unambiguously refers to the recovery of contraband from the accused, but Mehardeen did not raise any objection rather opted to sign as a witness. Not only this, the arrest memo Ext.PW9/C is also signed by Mehardeen aforesaid in whose presence, accused informed the police that his brother Virender Sood be informed on his Mobile number given in the endorsement made by him in his hand and under his signatures.

Further the accused was also produced before PW8 SI/ SHO Sita Ram, but no such complaint was made by him about his false implication in this case and thereafter to Judicial Magistrate when he was produced within 24 hours of his arrest before him. In the cross-examination of the PWs, it was put that the accused was owner of the Dhaba where police took free meals from the accused, then it is not understood when the accused had obliged them then why they foisted a false case on him. Even in the statement u/s 313 of the Code of Criminal Procedure, he even did not spell out any reason for his false implication.

It is well settled that the statement of the hostile witness cannot be thrown over board, his testimony can be relied upon by both the parties to the extent it supports them. Further the official witnesses are equally competent to depose as other witnesses. There is no rule of law that the testimony of the police official associated in search and seizure should not be believed or acted upon, but as a rule of caution their testimonies are required to be appreciated closely, cautiously and carefully.

Keeping in view the above principle in mind, in my assessment, the alleged recovery of the contraband was effected from the possession of the accused from the bag to which he was carrying as testified by the official witnesses aforesaid.

Now the next question arises whether the compliance of Section 50 of the Act was necessary in the above factual background. My answer to this query is "No".

In State of Himachal Pradesh Vs. Pawan Kumar, the Constitution Bench of the Apex Court has held:

A bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body or a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton etc. of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word "person" occurring in Section 50 of the Act.

After discussion on the interpretation of the word ''person'', the Court concluded:

that the provisions of Section 50 will come into play only in the case of personal search of the accused and not of some baggage like a bag, article or container, etc. which (the accused) may be carrying.

The Apex Court further observed:

In view of the discussion made, Section 50 of the Act can have no application on the facts and circumstances of the present case as contraband opium was allegedly recovered from the bag, which was being carried by the accused.

The judgment passed in State of H.P. v. Pawan Kumar, was also relied in Ajmer Singh Vs. State of Haryana, ]. Therefore, for the above reasons the provisions of Section 50 of the Act are not attracted.

The next question comes for determination about the discrepancies appearing in the statement of the prosecution witnesses viz. with respect to the journey of the police party performed from the Police Station in the truck upto Kothipura as stated by PW1 and PW2 and thereafter proceeding towards Gambher bridge in a Van as against the statement of the Investigating Officer who stated that they travelled in a private vehicle upto Kallar, thereafter in a Jeep, are of no consequence. This precedes the recovery, but the fact remains that the police was present at Gambher bridge at the relevant time and the accused was nabbed as aforesaid from whom contraband was recovered. It is also mentioned in the site plan Ext.PW9/B that the shops on the spot were closed, which fact is admitted by the witnesses. Even PW2 C. Sunitl Kumar also stated that the police party at Bedli had gone to the shop of the accused, where he was not found, thereafter he was found ahead carrying a bag where he was nabbed. According to this witness proceedings on the spot took about 2-3 hours to complete. Of course by that time it had become dark, but the search of the bag and seizure of the alleged contraband was already effected during the day and there is nothing on record to show that it was done after the Sun-set or had gone dark and even otherwise for the arguments sake in the facts and circumstances of the case, no prejudice is shown to have been caused to the accused even if the recovery is effected after Sun-set. The recovery stands proved.

The link evidence in the instant case is complete. Case property was produced before PW8 SI/SHO Sita Ram, to which he resealed with his own seal. Sample seals and NCB forms, which contained the facsimile of the seals used on the spot as well as at the time of resealing were deposited in the Malkhana and one sample parcel Mark A-1 was sent for its examination through PW4 C. Balbir Singh. PW7 MHC Ram Prakash as well as PW4 C. Balbir Singh testified that so long the case property remained with them was not tampered with and as per the report of the Analyst, the said seals so used were found intact when it was received in the Laboratory and the seals corresponds to the seals on NCB form and sent by the SHO. On its examination, the sample was found to have contained Morphine, Codeine, Papaverine and Meconic Acid and the tests conducted in the Laboratory identified the presence of "Opium Poppy" (Papaver Somniferum) species in the sample, which is "Opium Poppy" defined under the Act.

For the reasons aforesaid, I do not find any infirmity in the impugned judgment of conviction and sentence passed by the learned trial Court, which is hereby affirmed. The appeal is without any merit, therefore dismissed. Send down the record.