Himachal Pradesh High Court
Village Ghalyana vs Central Bureau Of Narcotics ... on 30 March, 2022
Bench: Sabina, Satyen Vaidya
1
REPORTABLE/NON-REPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
.
ON THE 30th DAY OF MARCH, 2022
BEFORE
HON'BLE MS. JUSTICE SABINA, JUDGE
&
HON'BLE MR. JUSTICE SATYEN VAIDYA, JUDGE
CRIMINAL APPEAL No. 137 of 2018
Between:
VILLAGE GHALYANA, POST to
SH. LAL CHAND, S/O SH. KATKU RAM, R/O
r OFFICE
BHALYANI, TEHSIL AND DISTRICT KULLU,
AGED 45 YEARS, H.P. (PRESENTLY IN THE
JUDICIAL CUSTODY)
..........APPELLANT
( BY SHRI C.S. THAKUR, ADVOCATE)
AND
STATE OF HIMACHAL PRADESH
..........RESPONDENT
(BY SHRI ASHWANI K. SHARMA, ADDITIONAL
ADVOCATE GENERAL)
This appeal coming on for hearing this day, Hon'ble Mr.
Justice Satyen Vaidya, delivered the following:-
JUDGMENT
Appellant, is in appeal against the judgment dated
09.10.2017, passed by learned Special Judge-II, Kullu, H.P. in Sessions
Trial No. 18/2016, whereby the appellant has been convicted for
commission of offence punishable under Section 20 of the Narcotic
.
Drugs & Psychotropic Substances Act, 1985 (for short 'ND&PS' Act)
and has been sentenced to undergo rigorous imprisonment for ten years
and to pay a fine of Rs. 1,00,000/- and in default of payment of fine to
undergo further simple imprisonment for one year.
2. The facts, on which prosecution based its case are as under:
(i) On 22.01.2016, a police party lead by PW-11 ASI Swarn
Singh, PW-10 HC Sheesh Ram, PW-9 HHC Man Chand and HHG
Saran pat was on routine patrol duty.
(ii) At about 9:00 PM, at place known as Zero-point Dhaugi,
appellant was noticed by police party, who got perplexed and was seen
throwing a bag out of his pocket.
(iii) Appellant was apprehended. Police party entertained
suspicion. Despite efforts no independent witness could be found.
PW-9 HHC Man Chand and PW-10 HHC Sheesh Ram were associated
as witnesses. The bag thrown by appellant was checked and charas
weighing 1 kg 600 grams was found.
(iv) The recovered charas was placed inside the same carry bag
from which it was found and the said carry bag was placed inside a
cloth parcel, which was sealed with eight seals of seal impressions "T".
NCB form Ext. PW5/A was filled in triplicate by PW-11 ASI Swarn
.
Singh. Seizure memo Ext. PW9/B was prepared. "Rukka" Ext. PW8/A
was prepared and sent to Police Station Banjar through PW-9 HHC Man
Chand for registration of FIR.
(v) FIR Ext. PW8/B was registered. Appellant was formally
arrested vide arrest memo Ext. PW-10/F. Spot map Ext. PW-11/A was
prepared. Photographs were clicked on the spot and were later
developed as Ext. PW-10/A to PW-10/E. Personal search of the
appellant was conducted vide memo Ext. PW-10/G.
(vi) The case property along with appellant were taken to
Police Station Banjar and handed over to PW-8, SHO ASI Anant Ram,
who resealed the cloth parcel containing contraband with four seals
having impression "N". Columns 9 to 11 of NCB form were filled. The
case property was handed over to PW-5, MHC Alam Gir, to be kept in
"Malkhana".
(vii) On 26.01.2016, the case property was sent by PW-5 MHC
Alam Gir to SFSL Junga for chemical examination through PW-7 C.
Sonu Ram.
(viii) On 19.02.2016, PW-1, HHC Bahadur Singh brought the
contraband along with SFSL report to the police station and handed over
.
the same to PW-5 MHC Alam Gir for safe custody.
(ix) On 23.01.2016, special report Ext. PW3/A was sent to
Additional Superintendent of Police, Kullu, H.P., who after making his
endorsement handed over the same to PW-3 HC Nirat Singh for record.
Necessary entry was made in the relevant register Ext. PW3/B. On
chemical examination, substance recovered from the appellant was
found to be Charas/Cannabis. On completion of investigation, the
challan was filed.
3. Learned Special Judge-II, Kullu, charged the appellant for
commission of offence punishable under Section 20 of ND&PS Act.
Appellant pleaded not guilty and claimed trial.
4. Prosecution examined eleven witnesses. Appellant was
examined under Section 313 of Cr.P.C. Appellant did not lead any
defence evidence. On completion of trial, learned Special Judge
convicted and sentenced the appellant as noticed above.
5. Along with memorandum and grounds of appeal, the
appellant has also preferred an application under Section 391 of the
Code of Criminal Procedure read with Section 137 of the Indian
Evidence Act, for the following relief:-
.
"It is, therefore, respectfully prayed that the present application may
kindly be allowed for the just decision of the case and the
appellant/convict be allowed to produce additional evidence in
defense and also may kindly be allowed to re-examine/cross-examine
three witnesses for the just decision of the case and for this kindness
the appellant shall every pray."
6.
Keeping in view the prayer made in aforesaid application
an appraisal of the entire material on record will be required, therefore,
we propose to dispose of the main appeal as well as the application by
this common judgment.
7. We have heard Mr. C.S. Thakur, learned counsel for the
appellant as well as Mr. Ashwani K. Sharma, learned Additional
Advocate General and perused the record.
8. PW-9 HHC Man Chand, PW-10 HHC Sheesh Ram and
PW-11 ASI Swarn Singh are the spot witnesses. These witnesses have
deposed in unison regarding the sequence of events those had taken
place on spot. As per them, they alongwith HHG Saran Pat left police
post Sainj at about 7:30 PM in relation with patrol and detection. DDR
No. 17, Ext. PW2/A was recorded in this behalf. At about 9:00 PM,
when they reached at place Zero point Dhaugi, appellant was noticed
coming from the side of Sainj. He got perplexed and immediately took
out some article from his jacket and threw it on the road and started
.
walking back briskly. Appellant was apprehended. He could not
explain his conduct satisfactorily. PW-9 HHC Man Chand was sent
towards Sainj to look for independent witnesses but he remained
unsuccessful. During this period, no vehicle crossed the spot. The bag
thrown by the appellant on the road was checked. It contained black
coloured substance which on smell was found to be charas. On
weighing the weight of the recovered charas was found to be 1kg
600grams. The charas was placed inside the same bag from which it was
recovered and the said bag was further placed in a cloth parcel, which
was sealed with eight seals having impression "T". NCB form Ext.
PW5/A was filled. Facsimile of seal of impression "T" was preserved
on a separate cloth Ext.PW9/A. Seizure memo Ext. PW9/B was
prepared. "Rukka" Ext. PW8/A was prepared and sent to police station
for the purposes of registration of FIR through PW-9 HHC Man Chand.
FIR Ext. PW8/B was registered. Spot map Ext. PW11/A was prepared.
Appellant was formally arrested vide arrest memo Ext. PW10/F.
Recovered contraband along with accused were forwarded to SHO ASI
Anant Ram at Police Station Banjar. Resealing proceedings were
conducted. The contraband was handed over to PW-5, MHC Alam Bir
for safe custody in "Malkhana".
.
9. All the spot witnesses were cross-examined on behalf of
the appellant at length. However, nothing could be elicited from them to
discredit their versions. PW-9 to PW-11 successfully withstood the test
of cross-examination. No material contradictions can be noticed from
their depositions.
10. We are not oblivious to the mandate of law specifying duty
of the Court to minutely scan the prosecution evidence in cases
attracting stringent punishment. Reference can be made to the judgment
passed by Hon'ble Supreme Court in Hanif Khan @ Annu Khan Vs.
Central Bureau of Narcotics (2020) 16 SCC 709, it has been held as
under: -
" Because there is a reverse burden of proof, the prosecution shall be
put to a stricter test for compliance with statutory provisions. If at
any stage, the accused is able to create a reasonable doubt, as a part
of his defence, to rebut the presumption of his guilt, the benefit will
naturally have to go to him."
11. Keeping in view the aforesaid mandate, we have examined
the statements of spot witnesses with absolute care and caution and
have found these witnesses worth credence. The recovery of 1kg
600grams of charas has duly been proved from exclusive and conscious
possession of the appellant.
.
12. It has been contended on behalf of the appellant that non
association of the independent witnesses was a mere pretense. Be that
as it may, in our considered view, non-association of the independent
witnesses will not affect the outcome of the case for the reason that the
recovery of contraband from the appellant has duly been proved.
Additionally, the entire link evidence also provides corroboration to
the hypothesis in favour of the prosecution case.
13. Further, it is trite law that non association of independent
witnesses is always not fatal to the prosecution case. In Raveen Kumar
Vs. State of Himachal Pradesh 2020 (12) Scale 138, it has been held as
under:-
"19. It would be gainsaid that lack of independent witnesses are not
fatal to the prosecution case. However, such omissions cast an added
duty on Courts to adopt a greater degree of care while scrutinizing
the testimonies of the police officers, which if found reliable can form
the basis of a successful conviction."
Thus, since there is nothing on record to discredit the version of
prosecution witnesses, non-association of independent witnesses will
not help the cause of the appellant.
14. There is nothing on record to suggest that the case
property was tampered with. PW-5, HC Alam Gir was the MHC at
.
Police Station Banjar. As per his deposition, the contraband remained in
safe custody in the "Malkhana". PW-7 C. Sonu Ram also proved the
safe custody of contraband during its transit from Police Station Banjar
to SFSL Junga. Similarly, the safe custody of the case property during
its transit from SFSL Junga to Police Station Banjar on 19.02.2016 has
also been proved by PW-1 HHC Bahadur Singh. The special report Ext.
PW3/A was prepared and sent by PW-11, ASI Swarn Singh on
23.01.2016 to the Additional Superintendent of Police, Kullu. Its receipt
has duly been proved by PW-3 HC Nirat Singh. Document Ext. PW3/B
is the extract of concerned register which evidenced the receipt of
special report Ext. PW3/A.
15. The due execution of NCB form Ext. PW5/A has been
proved by PW-11, ASI Swarn Singh and PW-8, ASI Anant Ram. The
preparation and receipt etc. of "Rukka" Ext. PW8/A has also been
proved. Taking wholesome view of the entire evidence, we find no
infirmity in the findings recorded by the learned Special Judge and the
same are affirmed.
Cr.MP No. 321 of 2018
.
Appellant has made a prayer to lead additional evidence to
prove the defence of the appellant to the effect that he was apprehended
by the police at Sainj instead of Zero point Dhaugi and contraband
found unattended on the road was planted against the appellant. It is
contended that the appellant could not lead defence evidence as he was
in custody and could not communicate with his counsel. The wife of
the appellant, who was taking care of the appellant's case, was not so
conversant with intricacies. As per appellant, the tower location of the
appellant at the relevant time as well as that of the police personnel will
clinch the issue. A prayer for further cross-examination of the spot
witnesses i.e. PW-9 to PW-11 has also been made. The claim of the
appellant has been contested by respondent-State.
2. Perusal of cross-examination of PW-9 to PW-11 (spot
witnesses) reveal that specific questions were put to them to the effect
that the appellant was apprehended by police at Sainj at 9:00 PM on
22.01.2016 and the contraband found unattended on the road was
planted against him. In his statement under Section 313 of Cr.P.C.,
appellant has also stated as under in answer to question No. 25:-
" Ans:- I am innocent. I was on the bus stand Sainj where I was
waiting for the bus and one abandoned bag was lying there and the
police made the false case of this bag on me."
.
Thus, the plea of appellant that he had not instructed his counsel with
respect to the aforesaid defence is falsified. Appellant had omitted to
lead defence evidence at his option. It is not understandable, in case
there was lack of communication between appellant and his counsel,
how the prosecution witnesses could be cross-examined in the manner
as aforesaid. Appellant cannot be allowed to fill-up the lacunae at this
stage. Therefore, we find no merit in this application and the same is
dismissed.
16. In light of above discussion, the appeal is dismissed.
Conviction of appellant under Section 20 of the Narcotic Drugs &
Psychotropic Substances Act, 1985 and sentence as imposed by the
learned Special Judge-II, Kullu, H.P. against the appellant, is affirmed.
Pending miscellaneous application(s), if any, shall also
stand disposed of.
( Sabina )
Judge
( Satyen Vaidya )
Judge
March 30, 2022
(sushma)
.
