Himachal Pradesh High Court
Chhotu vs Unknown on 21 October, 2022
Bench: Sabina, Satyen Vaidya
1
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 21st DAY OF OCTOBER, 2022
.
BEFORE
HON'BLE MS. JUSTICE SABINA
&
HON'BLE MR. JUSTICE SATYEN VAIDYA
CRIMINAL APPEAL NOS.368 & 406 of 2020
1.
1.
Between:-
GULZAR MOHAMMAD, S/O
CRIMINAL APPEAL NO.368 of 2020
CHHOTU, R/O VILLAGE
ZHIRIWALA, POST OFFICE
REHRU, TEHSIL AND POLICE
STATION NALAGARH,
DISTRICT SOLAN, HIMACHAL
PRADESH, AGED ABOUT 47
YEARS.
2. SHOKA LAL, S/O SHRI
OMKAR R/O VILLAGE AKIYA,
POST OFFICE AKIYA, TEHSIL
BADSHER, DISTRICT
CHITAUR, RAJSTHAN.
.... APPELLANTS
(BY MR. RAJIV RAI, ADVOCATE)
AND
STATE OF HIMACHAL PRADESH
....RESPONDENT
(BY MR. KUNAL THAKUR, DEPUTY
ADVOCATE GENERAL)
::: Downloaded on - 21/10/2022 20:06:23 :::CIS
2
2. CRIMINAL APPEAL No. 406 of 2020
Between:-
.
MEHARDEEN SON OF SHRI
LAL DEEN, AGED 32 YEARS
RESIDENT OF VILLAGE
RUTANWALA, P.O. LODI
MAJARA, TEHSIL & P.S.
BADDI, DISTRICT SOLAN, H.P.
.... APPELLANT
(BY MR. VIVEK SINGH ATTRI, ADVOCATE)
AND
STATE OF HIMACHAL PRADESH
r to ....RESPONDENT
(BY MR. KUNAL THAKUR, DEPUTY
ADVOCATE GENERAL)
Reserved on : 17th October, 2022.
Decided on : 21st October, 2022.
These appeals coming on for pronouncement of judgment
this day, Hon'ble Ms. Justice Sabina, delivered the following:
JUDGMENT
Vide this order above mentioned two appeals would be
disposed of as they have arisen out of the common judgment/order
dated 18.8.2020/19.8.2020, respectively.
2. Appellants have filed the appeals challenging the
impugned judgment/order, whereby they have been convicted and
sentenced as under:-
Section 15 of the : Rigorous imprisonment for ten years each
Narcotic Drugs and and to pay a fine of `1,00,000/- (Rs. One
Psychotropic lakh only) each. In default of payment of
.
Substances Act fine, they shall further undergo simple
imprisonment for one year each.
3. Prosecution story, in brief, is that on 6th July, 2016, at about
5.30 a.m., SHO Kamal Chand, along with other police officials were
present on patrol duty in official vehicle driven by HHG Ashok Kumar at
Nalagarh Bazar. At about 6.45 a.m. when the police officials reached
Jagathkhana, two persons were noticed by them. SHO Kamal Chand
stopped the vehicle and started talking to Nand Lal and Shyam Lal.
Police officials got down from the vehicle and started walking on the
road towards Dherowal. When they reached near K.K. Alu Foil
Company, they saw a truck bearing registration No.HP12D-3133 and a
car bearing registration No.RJ09-CC2151, parked on the road side and
three persons were standing near the vehicles. On seeing the police
party, two persons quickly sat in the car and third person sat in the
truck. SHO Kamal Chand, instructed the police party to inquire about
the said three persons. Police party then covered the vehicles and the
driver of the car, on inquiry, disclosed his name as Gulzar Mohammad,
whereas, the other person sitting in the car disclosed his name as
Shoka Lal. The driver of the truck disclosed his name as Mehardeen.
When the Swift car was checked, then nine bags, which were tied with
a knot, were recovered from the dicky and backseat of the car with
words "Maize Starch Powder and for Industrial Use only" printed in
.
green colour and "net weight 100 kg" printed in red colour. Similar two
bags were recovered from the truck. When the bags were opened, it
was found that they contained Poppy Husk. The bags recovered from
the Car weighed 173.490 kilograms and the bags recovered from the
truck weighed 12.700 kilograms. Thus, the total weight of the
contraband was found to be 186.190 kilograms. Thereafter, 500 grams
of Poppy Husk was drawn out from each bag as a sample and the said
sample was made into a sealed parcel with seal bearing impression 'V'.
Bags containing residue contraband were also made into sealed
parcels and were sealed with seal bearing impression 'V'. Sample seal
was handed over to witness Nand Lal Negi. NCB-I form in triplicate
was prepared. The appellants could not produce any licence or permit
for keeping the contraband in their possession. Rukka was sent to
Police Station for registration of FIR.
4. On the basis of Rukka, a formal FIR No.125 dated 6th July,
2016 was registered at Police Station, Nalagarh, District Solan, under
Sections 15 of the NDPS Act. Photographs at the spot were taken by
the SHO with the help of his mobile camera.
5. Appellants were arrested. On return to the police station,
the case property was handed over to MHC for depositing the same in
the Malkhana. On 7th July, 2016, the case property was produced
before Judicial Magistrate 1st Class, Nalagarh for proceedings under
.
Section 52A of the Act. Judicial Magistrate, after verifying the case
property gave the certificate and sealed the case property with his seal
bearing impression 'JMIC(2) Nalagarh'. Samples were sent to
Forensic Science Laboratory for chemical analysis. After the receipt of
the report of the chemical analyst and on completion of necessary
formalities, challan was presented against the appellants.
6. Charge was framed against the appellants under Section
15 of the NDPS Act. Appellants did not plead guilty of the charge
framed against them and claimed trial.
7. In order to prove its case, during trial, prosecution
examined 18 witnesses.
8. Appellants when examined under Section 313 of the Code
of Criminal Procedure, after the close of prosecution evidence, prayed
that a false case has been registered against them and they were
innocent.
9. Appellants did not examine any witness in their defence.
10. Learned counsel for the appellants Gulzar Mohammad and
Shoka Lal has submitted that the prosecution had miserably failed to
prove its case. False recovery had been planted on the appellants.
The story put forth by the prosecution was not believable as nine bags
of poppy husk could not have fitted in the dicky of swift car. There were
material discrepancies in the statements of prosecution witnesses. As
.
per the PW-17, the seal after use had been handed over to witness
Nand Lal, but the said witness had not been examined during trial.
PW-1 has stated that seal after use was handed over to witness Shyam
Lal, whereas, PW-17 had stated that seal after use was handed over to
witness Nand Lal. Hence, the possibility that the case property had
been tampered with could not be ruled out. PW-17 had stated that he
had clicked photographs at the spot, whereas, PW-1 had deposed that
no photographs were taken at the spot in his presence. Thus, there
were material discrepancies in the testimonies of the official witnesses,
which rendered their statements doubtful. Learned counsel has further
submitted that the prosecution had failed to examine Ashok Kumar as a
witness, who was allegedly driving the official vehicle at the time of
alleged incident. Learned counsel has also submitted that it was
evident from the NCB Form that the number of the FIR had been filled
up in red ink, whereas, remaining contents of the said form were in
blue ink. Learned counsel has also submitted that in the entry made in
the Register Ex.PW-12/A, there was no mention as to who had
deposited the case property.
11. In support of his arguments, learned counsel has placed
reliance on the judgment of Punjab and Haryana High Court in Radha
Bai versus State of Haryana, 2015(2) Criminal Court Cases 603
(P&H), wherein it was held as under:-
.
"21. ....... So, on the point of apprehension of the
accused, there is only the solitary statement of PW-5 ASI
Virender Singh, which is not corroborated from any other
source. The withholding of constables Sham Lal and Sewa
Ram, the witnesses of recovery raises an adverse
inference against the prosecution. Due to non-examination
of anyone out of them, the testimony of the Investigating
Officer is totally uncorroborated......
22. xxx xxx xxx
There is again a serious contradiction in the
prosecution case about the person to whom the seal after
use was entrusted by the Investigating Officer. PW-4 DSP
Banwari Lal has stated that the seal after use was handed
over to constable Sewa Ram by ASI Virender Singh. But,
PW-5 ASI Virender Singh stated that he entrusted the seal
after use to constable Sham Lal. However, none of these
witnesses has been examined by the prosecution and both
of them have been given up as unnecessary. So, even the
witness of seal has not been examined by the prosecution
to establish that the case property remained intact."
12. Learned counsel for appellant Mehardeen has, in addition,
further submitted that so far as the said appellant was concerned, PW-
2 independent witness has categorically deposed that no recovery from
the truck was effected in his presence. Hence, the said appellant was
liable to be acquitted and he has been falsely involved in this case by
the official witnesses. There was no material on record to suggest that
appellant Mehardeen had any knowledge about the possession of the
.
contraband, if any, held by the other appellants. Although, the
prosecution has based reliance on the call details of the appellant to
establish the fact that he had travelled from Rajsthan to the place of
incident, but there was no memo of personal search of the accused on
record to establish that the mobile phone, in question, had been taken
in possession by the police from his custody.
13. Learned Deputy Advocate General, on the other hand, has
opposed the appeal and has submitted that the prosecution had been
successful in proving its case. The official witnesses had no enmity
against the appellants to have falsely involved them in this case.
14. Present case relates to recovery of 186.190 kilograms of
Poppy Husk. As per the prosecution story, recovered contraband was
in eleven bags. Nine bags were recovered from the Car, whereas, two
bags were recovered from the truck.
15. Prosecution has examined PW-17 Kamal Chand, ASI
Mohan Singh PW-18, PW-1, ASI Chaman Lal, PW-3 HC Dinesh Kumar
and PW-5 HC Bhim Singh. The said witnesses are the official
witnesses. So far as the official witnesses are concerned, they all
have deposed as per the prosecution story with regard to the recovery
of the contraband from the car and the truck and apprehension of the
accused at the spot from their respective vehicles.
.
16. Prosecution has also examined one of the independent
witnesses Shyam Lal Negi as PW-2. The said witness has deposed to
the effect that recovery of the bags was affected from the Car, but he
had not noticed the recovery from the truck. As per this witness, the
total bags were 11 in number. The bags had been sealed with seal
bearing impression 'V' after drawing samples from them.
stated that the police had clicked photographs of the truck as well as
the car. In his cross-examination he stated that the bags were not
He also
counted inside the car and they were taken out from the car and
thereafter they were counted and the bags were eleven in number. He
also admitted that he had appeared as a witness in 2-3 cases.
17. As per PW-1, ASI Chaman Lal, seal after use had been
handed over to witness Shyam Lal, whereas, PW-17 Kamal Chand has
deposed that seal after use has been handed over to witness Nand Lal
Negi. Since the witnesses were examined after a gap of more than two
years, some minor discrepancies are liable to occur in their statements
and the said discrepancy cannot be said to be fatal to the prosecution
case. It has been argued by learned counsel for the appellant that
witness Nand Lal had not been examined during trial and the said fact
was fatal to the prosecution case. However, we do not find any merit in
the said submission made by learned counsel for the appellants
because so far as witness Nand Lal is concerned, he was given up
.
during trial by learned Public Prosecutor on 6 th June, 2018, on the
ground that he had been won over by the accused. Since the
independent witness Nand Lal had been won over by the accused, no
purpose would have been served by examining him during trial.
Moreover, the official witnesses have duly proved the factum of
recovery. So far as the case property is concerned, the same was duly
sealed with seal bearing impression 'V' by the investigating officer. The
said sealed case property was produced before the Magistrate, on 7th
July, 2016. The Judicial Magistrate had verified and found that the
seals on the case property were intact and had further sealed the case
property with Court seal. A perusal of the report of Forensic Science
Laboratory Ex.PW-17/J reveals that samples received in the
Laboratory were sealed with one seal bearing impression 'V' and one
seal bearing impression 'JMIC(2) Nalagarh'. The seals were found
intact and tallied with the specimen seals. There is nothing on record
to infer that the case property has been tampered with.
18. Similarly, the non-examination of the driver of the official
vehicle Ashok Kumar also cannot be said to be fatal to the prosecution
case as five official recovery witnesses have been examined during
trial and the said witnesses have duly deposed with regard to the
recovery of the contraband effected from the appellants. The said
witnesses were cross-examined at length, but nothing fruitful could be
.
elicited from their cross-examination by the learned defence counsel to
render their statements with regard to the recovery of the contraband
from the appellants, doubtful. The official witnesses were acting in
discharge of their official duties and had no reason to falsely involve
the appellants in this case.
19.
So far as appellant Mehardeen is concerned, although,
independent witnesses had deposed that nothing was recovered from
the truck in his presence, but from the testimonies of the official
witnesses it stands duly established that two bags of the contraband
were recovered from the truck driven by the said appellant. The
testimony of PW-2 with regard to exoneration of appellant Mehardeen
in the crime fails to rebut the testimonies of official witnesses with
regard to the recovery of the contraband from the truck by appellant
Mehardeen. Apparently, PW-2 Shyam Lal, independent witness was
won over by the appellant Mehardeen.
20. PW-4 Om Prakash deposed that on 30th June, 2016, 65
drums of cab chemical were sent to their Company Branch at
Chandigarh in truck No.HP12D-3133 and the said drums were handed
over on supurdari to him by the police of Police Station, Nalagarh.
From the testimony of the said witness, it is evident that the truck in
question was taken in possession by the Police and the drums, which
were loaded in the truck, hand been handed over to PW-4 on
.
supurdari.
21. A perusal of the NCB Form Ex.PW-17/C reveals that the
number of FIR is written in red ink, whereas, other contents of the said
form have been filled in blue ink. PW-17 Kamal Chand has deposed to
the effect that he had filled-in the NCB form in triplicate at the spot.
r to
The fact that the FIR number has been written in red ink and the
remaining part of the form has been filled-in with blue ink, cannot be
said to be fatal to the prosecution case. Learned counsel for the
appellants have failed to point out as to what prejudice has been
caused to the appellants due to the fact that the FIR number has been
written in the red ink, whereas, the remaining part of the form has been
filled in blue ink.
22. We have also gone through the contents of Ex. PW-12/A,
copy of the entry in the Register, maintained in the Police Station. A
perusal of the same reveals that the fact of handing over of the case
property by SHO Kamal Chand to MHC Santosh Singh is duly recorded
therein. Although, the signatures of SHO Kamal Chand as well as
Santosh Singh are not available on EX.PW-12/A, but the said fact in
itself is not sufficient to hold that the case property had not been
deposited by the SHO in the Police Station. As per PW-12 HHC
Santosh Singh, the case property was deposited with him by the SHO
on 6th July, 2016 and the same was taken out on 7 th July, 2016 for
.
obtaining certificate under Section 52 A of the Act and thereafter the
case property was re-deposited with the said witness by the SHO on
the same day. A perusal of the certificate Ex.PW-17/F, issued by the
Magistrate under Section 52A(3) of the Act shows that the Magistrate
had satisfied itself that the inventory produced before it by the SHO
23.
r to
was correct and the total weight of the contraband after drawing the
sample from each bag was found to be 188.75 kilograms.
Thus, after carefully going through the entire record, we
are of the opinion that the prosecution had been successful in proving
its case. The statements of the official witnesses with regard to the
recovery of the contraband from the respective vehicles of the
appellants inspire confidence. The minor discrepancies, which have
occurred in the statements of the official witnesses, cannot be said to
be fatal to the prosecution case because the witnesses were examined
after more than two years of the recovery during trial and such minor
discrepancies are liable to occur with the passage of time.
24. During investigation of the case, the prosecution has also
collected the call details of the appellants. The said call details even if
ignored, establish the prosecution case.
25. The judgment relied upon by the learned counsel for the
appellants fails to advance the case of the appellants as it is based on
.
different facts because in the said case, there was only the solitary
statement of one official witness, whereas, in the present case, five
official witnesses have deposed with regard to the recovery of the
contraband from the possession of the appellants. The statements of
the official witnesses inspire confidence. Their statements corroborate
26.
r to
each other and prove the prosecution case beyond the shadow of
reasonable doubt.
Since in the present case the prosecution had been
successful in proving its case against the appellants beyond the
shadow of reasonable doubt, learned trial Court had rightly ordered the
conviction and sentence of the appellants with regard to the charge
framed against them. Therefore, no ground for interference is made
out. Accordingly, the appeals are dismissed and the judgment of
conviction dated 18.08.2020 and order of sentence dated 19.08.2020,
passed by learned trial Court are upheld.
(Sabina)
Judge
(Satyen Vaidya)
Judge
October 21, 2022(ps)
