Nahan vs State Of H.P
2021 Latest Caselaw 3942 HP

                           1

IN THE HIGH COURT OF HIMACHAL PRADESH AT
                 SHIMLA
            ON THE 16th DAY OF AUGUST, 2021




                                                    .

                       BEFORE
      HON'BLE MR. JUSTICE ANOOP CHITKARA





            CRIMINAL APPEAL No. 630 of 2017
Between:-
AGYA CHAND




S/O SH. MAN DASS
R/O VILL. DHANDHAR
P.O. MANGLORE,

P.S. & TEHSIL BANJAR,
DISTRICT KULLU, (H.P.)

AT PRESENT UNDER
CUSTODY/PRISONER IN
MODEL CENTRAL JAIL


NAHAN, DISTRICT SIRMAUR, H.P.
                                                ....APPELLANT




(BY SHRI H.S.RANGRA, ADVOCATE)
                         AND





STATE OF H.P.                      ..RESPONDENT.





(BY MR. NAND LAL THAKUR, ADDITIONAL
ADVOCATE GENERAL WITH MR. RAM LAL THAKUR
& MR. SUNNY DHATWALIA, ASSISTANT ADVOCATES
GENERAL)




                                   ::: Downloaded on - 31/01/2022 22:53:11 :::CIS
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     This appeal coming on for orders this day, the Court passed
the following:
                         JUDGMENT

.

FIR NUMBER 120/2015 dated 27.12.2015, Police Station Banjar, District Kullu under

Section 20 of NDPS Act.

TRIAL COURT Sessions Trial No.25 of 2016, decided on

11.10.2017, by learned Special Judge-II, CASE NO.

Kullu.

         CHARGES & TRIAL COURT'S VERDICT


    Accused Agya       Section 20 of Accused          convicted          and



    Chand              NDPS Act        sentenced         to       undergo
                                       rigorous imprisonment for




                                       a period of seven years and





                                       to pay a fine of `70,000/-
                                       and in default of payment





                                       of fine, he shall further
                                       undergo                      simple
                                       imprisonment for a period
                                       of one year.

Challenging the conviction and sentence for possessing 765.4 grams of Charas, the convict has come up before the is Court.

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2. On 26th December 2015, a Police team headed by PW-6

ASI Chaman Lal was conducting patrolling and Nakabandi in their jurisdiction. At 00.15 a.m., i.e., the intervening night of 26/27 December 2015, when the Police team was present at

Phagupul, then they noticed a person walking from the side of Thatibir. The police officials alighted from the vehicle and

inquired him for the reasons walking at such odd hours in

winter. The said person explained that he was going to Banjar Hospital, where one of his relatives was admitted, and he was

carrying food for him. The investigator asked him to show the food and became perplexed. He stated that he was in a hurry,

and it raised suspicion in the investigator's mind. On checking

the bag, the investigator found a plastic container with transparent polythene containing the black-colored substance.

After smelling and based on experience, the police officials noticed that it was Charas (Cannabis). Since it was winters and the place was isolated, and the time was midnight, the police officials concluded that there was no possibility of associating independent witnesses and, as such, went on the further

procedural requirement of the NDPS Act. After completing the procedural requirements, the police arrested the accused. In the morning, the accused and the case property were produced

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before SHO, who re-sealed the case property and forwarded it to Malkhana in charge. After making requisite entries in Malkhana

in charge, sent the case property for testing to SFSL, Junga. As per the report of the Laboratory Ex.PW-6/E, the substance tested positive for Cannabis, and it was found to be charas. After

completing the investigation, the officer in charge of the police station launched prosecution against the accused.

3. Vide order dated 11.7.2016, learned Special Judge-II, Kullu, framed charges under Section 20 of NDPS Act against the

accused, to which the accused did not plead guilty and claimed trial.

4. After examination of the prosecution witnesses, the

accused in his statement under Section 313, CrPC, denied all the

circumstances and stated that he had been falsely implicated.

5. The accused lead defence evidence and examined two witnesses. DW-1 Hitesh Kumar stated that on 26th December 2015, he had gone to attend a religious function in the house of his sister-in-law at Phagupur. He had stayed there till the

evening of 27th December 2015. He stated that during the time he was present at Phagupul, nothing happened there. No Government official was present, and the function of Devta

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Markandey Rishi was going on in the house adjacent to the road, in which 100-150 persons were present there. DW-2 Yudhishter

tated that they had traveled on that road during the intervening night of 26/27th December 2015 and did not notice any activity at Phagupul.

6.

Learned Special Judge found the evidence led by the

prosecution as credible and discarded the defence evidence as

not credible and convicted the accused and sentenced him as mentioned above.

7. Challenging the said judgment of conviction and

sentence, the accused came up before this Court by filing the

present appeal. However, the accused did not file any application for suspension of sentence, and he is in custody

w.e.f. 11th October 2017, till date, apart from the initial period of custody, i.e., 27th December 2015 till 19th January 2016, when he was released on bail, as reflected from a police report filed under Section 173(2) CrPC.

8. Ld. Counsel for the appellant argued that the Police could have associated independent witnesses. However, because nothing had taken place at the spot, they did not associate them.

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Ld. Counsel also argued that the accused's defense witnesses are credible and have offered a plausible explanation.

9. Mr. Nand Lal Thakur, Ld. Additional Advocate General argued that the time of the incident was midnight of winters, and

due to snow in higher reaches, the movement of vehicles had paused. Ld. Counsel further argued that none would come out of

the house at midnight to avoid exposure to the freezing cold in

winters.

ANALYSIS AND REASONINGS.

10. The police party had departed for patrolling and

Nakabandi on 26th December 2015, at 9.26 p.m. Extract of the

entries of Daily Diary Register, was proved by PW-1 Alam Gir and exhibited as Ex.PW-1/D. As per these entries, the Police

party comprised PW-6 Chaman Lal, HC Bahadur Singh (not examined), Constable Sonu Ram PW-5, and Driver C. Narender (not examined). Although in the extract of Daily Diary Register Ex.PW-1/D, there is no mention that the police party had carried the investigator kit, electronic scale, etc., but PW-5, C. Sonu

Ram, in his cross-examination, stated that they had Mega light, I.O. Kit, electronic scale in the vehicle. Furthermore, the photographs Ex.PW-3/A-1 to Ex.PW-3/A-8 show that there was

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an electronic scale with the police officials apart from the searchlight. Thus, given the photographic evidence, which

shows the charas being weighed on the electronic scale and appropriate light at the spot, corroborates the testimony of PW-5 that the police party had the investigator kit, etc., at the time of

patrolling. Thus, the non-mentioning of the Investigator kit in the Daily Diary report is insignificant.

11. As per the statement of investigator PW-5 Chaman Lal and another member of the police party C. Sonu Ram PW-5, the

police officials had gone in a police vehicle, which is reflected in the Daily Diary register Ex.PW-1/D. Although the prosecutor

did not examine C. Narinder Singh, who was the vehicle's

driver, to prove its logbook, a perusal of the photographs described above shows that the paperwork is done in the night-

time in the cabin of the police vehicle. Thus, the non- examination of the driver C. Narinder Singh is also insignificant and does not dent the prosecution's case till this stage.

12. As per the testimony of investigator PW-6 ASI Chaman Lal, during the intervening night of 26th and 27th December 2015, when the police officials were present at Phagypul, then at

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quarter past midnight, they noticed one person walking from Thatibir side. The said person was carrying a bag in his hand.

The investigator alighted from the vehicle, inquired about his name, and asked why he was walking at such odd hours of the night. The said person disclosed his name as Agya Chand, the

appellant herein. For walking at such odd hours, he explained that one of his relatives was admitted to Banjar Hospital, and he

would see him. On inquiry from the bag, he started making

lame excuses. PW-5 corroborated the version of the investigator. The only contradiction in his testimony is that in

the initial reports like seizure memo Ex.PW-5/B, rukka PW-5/C, FIR Ex.PW-6/A and special report Ex. PW-4/A what is

mentioned is that when the police officials had inquired from the

Agya Chand about the bag's contents, he had said that he was carrying food for his relative, who was admitted to the Hospital.

The incident occurred on 27th December 2015, whereas the witnesses were examined on 8th May 2017, i.e., after around one and a half. Thus, this discrepancy is not that significant to create a dent in the prosecution's entire case and has to be

ignored, having occurred due to the passage of time. There is a tendency amongst human beings to forget with a lapse of time.

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13. On opening the bag, it contained a plastic box, which further contained a polythene bag with black colored substance.

The police officials took out the said bag, and on opening, it was emitting the smell of Charas. Based on experience, the police officer's prima facie found it to be Charas. This version of the

investigator PW-6 is fully corroborated by the witnesses PW-5 C. Sonu Ram and the documents prepared at the spot. The

climatic conditions of the Kullu district in Himachal Pradesh are

very conducive to the wild growth of cannabis plants. It leads to a significant amount of extraction of Charas. Thus usually,

investigators and police officials would have come across at one or another point in time, the exposer to Charas. Thus, during the

course of their duty, when the investigator prima facie concluded

the contents to be of Charas, it is not unusual and rather justiciable. Furthermore, as per the report of the Laboratory

Ex.PW-6/E, on testing, the contraband was found to be Charas.

14. Thus, so far, the prosecution has been able to prove that they had stumbled upon the charas perchance and without any prior information. What has to be seen is that after the recovery

of charas, whether the police officials intentionally did not opt to associate independent witnesses or it was their compulsion not to associate. A reference to the earliest document, i.e., seizure

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memo Ex.PW-5/B, based on which the other documents rukka, FIR, and Special report were also made, states explicitly that due

to the sudden recovery of charas and spot being isolated, without any human movement, and the time of occurrence being midnight, the police officials prima facie believed that there was

no possibility of finding any local witness. Thus, they proceeded to conduct the further proceedings on their own.

15. In the testimony before the Court, the investigator PW-6 and the other spot witness PW-5 took a similar stand. In the

cross-examination of PW-5, he admitted a house at a distance of 50 meters from the spot. He clarified that only one house was

visible, and he showed ignorance about other houses of persons,

namely Amar Singh, Gurbachan, and Atma Ram. He admitted several houses at a place known as Mangalore at 100-150 meters

from Phagupul towards Aut side. There was also a tiny bazaar known as Mangalore Bazaar. He has also admitted that near village Bihali towards Thatibir and Dandhar side and there were several houses in that village. PW-6, investigator ASI Chaman Lal in his cross-examination, admitted that houses of

Gurbachan, Atma Ram, and Amar Singh were at some distance. He explained that it was night and houses were not visible. He also stated that Mangalore Bazaar was 500 meters from

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Phagupul, and there is another village Bihar near Phagupul.

16. The issue before this Court is that when there are villages in the vicinity, then whether non-association of witnesses from such villages creates a dent in the prosecution story or not?

The occurrence was in the Kullu District of Himachal Pradesh at the end of December, a cold zone. The

Investigator specifically stated that the main road leads from Aut

to Jalori, but due to snow in Jalori Jot, the movement of vehicles had stopped. In the winter, the Sun sets very early, and in

December, around half-past five. During winters, people sleep a bit early. People living in remote villages tend to remain inside

their houses during cold winters and would be very reluctant to

come out.

17. The case set up by the defence is that on that particular day, there was a function of the Devta, and villagers were present. As per the statement of DW-1 and DW-2, they did not notice any activity at Phagupul at that point in time. In winters during midnight in the harsh and cold winters, people would not

keep peeping outside from the windows of their room. Instead, they close the windows and doors and stayed inside to maintain the temperature inside their houses. Even otherwise frequent

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coming out of house lead to exposer to cold, which people avoid. Thus, simply because these two witnesses did not notice

any movement does not mean that the police party was not present at the spot. A perusal of the statements of PW-5 and PW-6, not even a single suggestion has been put about any

enmity or any reasons for false implication. Thus, given the material omission during cross-examination above, the accused

could not probabilize his defence.

18. After the search, seizure and preparation of documents at

the spot, the investigator PW-6 deposited the case property with PW-7 SHO, who had re-sealed the same with seal 'T.' A perusal

of the SFSL report reveals that when they received the case

property, it was duly sealed with a similar number of seal impression with which the investigator and SHO sealed it. A

perusal of NCB Forms Ex.PW-1/A, extract of Malkhana Register Ex.PW-1/B, Road Certificate Ex.PW-1/C and extract of Daily Diary Ex.PW-1/F, coupled with the statement of witnesses of link evidence, namely PW-1 Alam Gir, PW-2 HC Diwan

Chand, and PW-7 SHO Inspector Jitender Kumar, proves the link evidence.

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19. Given the report, Ex.PW-6/E of the Forensic Science Laboratory tested the contraband recovered from

accused Agya Chand as Charas weighing 765.4 grams. Thus, in the entirety of facts and circumstances peculiar to this case, the prosecution has proved its case beyond reasonable doubts.

20.

I have gone through the judgment passed by the

learned trial Court, which is well reasoned and calls for no

interference except for the sentencing part. Learned Sessions Judge sentenced the accused to undergo rigorous imprisonment

for seven years and pay a fine of Rs. 70,000/- and in default of payment of fine, further imprisonment for one year.

21. The maximum sentence for possessing an intermediate quantity of drugs and substances prohibited under the NDPS Act

can extend up to ten years of imprisonment. Vide the provisions contained in S. 31, 31-A, and 32 of the NDPS Act, the legislature has already placed special provisions for enhanced or higher sentences. While prescribing the upper limit of ten years, the legislature also considered those involved in various crimes

other than the NDPS Act. Thus, the uppermost limit would be when no other mitigating circumstances are available to impose a lesser sentence.

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22. A perusal of the order dated 11.10.2017, passed on the

quantum of the sentence, reveals that learned Sessions Judge believed that no leniency could be shown in punishment because the offense involves the health of the society.

23.

Thus, the learned trial Court did not consider the other

social factors regarding his age and that the accused was the first

offender. A perusal of the 173(2) reports does not level any allegations of any criminal history. The accused was arrested on

27th December 2015, and he was released on bail on 19.1.2016, i.e., initially, he remained in jail for around 24 days.

24. During the trial, he was sentenced on 11th October 2017, and on that day, he was present in the Court and was taken into

custody. Thus, he has already spent a further period of more than three years and eleven months. Overall, the convict has already undergone more than three years of imprisonment. The total substance recovered from the accused was 765.4 grams of charas. Thus, given the absence of criminal history, the accused

is entitled to a reduction of sentence. Accordingly, the substantive sentence and the sentence in default of non-deposit of fine is reduced to already undergone. Registry to prepare

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release warrants and the accused shall be released, according to Section 437-A CrPC, provided he is not required in any other

case.

25. Given above, the judgment of conviction passed by

learned trial Court is modified in the aforesaid terms. Pending application(s), if any, shall also stand disposed of.

                                            (Anoop Chitkara)
August 16, 2021(ps)                              Judge