_____________________________________________________ vs State Of Himachal Pradesh
2023 Latest Caselaw 9305 HP

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

.

                                                              Cr. Appeal No. 469 of 2022





                                                              Reserved on:             16.06.2023
                                    Decided on: 13.07.2023

_____________________________________________________ Onani Mechila alias Alan ...Appellant

Versus State of Himachal Pradesh ...Respondent _____________________________________________________ Coram

Hon'ble Mr. Justice Sushil Kukreja, Judge

Whether approved for reporting?

_____________________________________________________

For the appellant: Mr. Servedaman Rathore, Advocate. For the respondent: Mr. R.P. Singh, Deputy Advocate General.

Sushil Kukreja, Judge

The instant appeal filed under Section 374 (2) of the

Code of Criminal Procedure (Cr.P.C.), by appellant Onani Mechila

alias Alan, laying challenge to the judgment of conviction and order

of sentence dated 09.11.2022, passed by the learned Special

Judge-III, Solan, District Solan, H.P., in Sessions Trial No.13ASJ-

II/7 of 2020/2019, titled State of Himachal Pradesh Versus Onani

Mechila alias Alan & another, whereby appellant Onani Mechila

Whether reporters of Local Papers may be allowed to see the judgment?

alias Alan and co-accused Stenli (hereinafter referred to as the

.

accused persons) were convicted and sentenced to undergo

rigorous imprisonment for five years and to pay fine of Rs.50,000/-,

for the commission of offence punishable under Section 21 of the

Narcotic Drugs and Psychotropic Substances Act, 1985 ( for short,

'NDPS Act') and in default of payment of fine, they shall further

undergo simple imprisonment for six months and for the

commission of offence punishable under Section 29 of NDPS Act,

they were sentenced to undergo rigorous imprisonment for a

period of five years and to pay fine of Rs.50,000/- and in default of

payment of fine, they shall further undergo simple imprisonment

for a period of six months.

2. The prosecution case, in nutshell, is that on

17.08.2019, SHO Dharam Sain Negi alongwith HC Devender,

Constable Aman, Constable Hemant and Driver Purshotam, were

on patrolling duty towards Solan-Chambaghat-Salogra and at

about 7.00 p.m., when they were present near Taran Taaran Hotel

Brewery, they saw two persons (Negro) coming on foot on the side

of NH-05 and on seeing the police, they got perplexed and tried to

run away towards Salogra side, on which they were nabbed on the

spot and on asking the person holding a black coloured pithu bag

.

on his right shoulder, he disclosed his name as Onani Mechila and

another person disclosed his name as Stenli. On having some

suspicious material being carried in the pithu bag, Vineet Rattan

and Rajinder Singh Dogra were associated as witnesses and in

their presence and in presence of the police officials, the accused

persons were taken to a room in Taran Taaran Hotel due to heavy

rain, where the said pithu bag carried by accused Onani, was

searched. During search, in the front pocket of the bag, two white

plastic pouches were found, out of which, one plastic pouch was

containing light brown coloured candle type substance and in

another polythene pouch, a light brown coloured powder

substance was found. In the middle pocket of the said bag, one

gun shaped lighter, rolled currency note of 10 rupees (chaser),

one towel, one pant, two knickers, one lower, one T-shirt were

found and in the back pocket, 15 currency notes in the

denomination of Rs.2,000/-, 123 currency notes in the

denomination of Rs.500/-, 19 currency notes in the denomination

of Rs.200, 33 currency notes in the denomination of Rs.100/- and

5 currency notes in the denomination of Rs.50/-, totalling

Rs.98,850/- were recovered. On checking the substance, it was

.

found to be heroin/chitta and on weighing the same from digital

weighing machine, it was found to be 09.90 grams. Thereafter, the

recovered heroin alongwith polythene pouches and rolled currency

note were put in a cloth parcel and sealed with 5 seals of seal

Impression 'O' and currency notes of Rs. 98,850/- alongwith gun

shaped lighter were put in a separate cloth parcel, which was

sealed with 8 seals of seal Impression 'O' and the pithoo bag

alongwith the above mentioned clothes parcels were put in a

separate cloth parcel, which was sealed with 4 seals of seal

impression 'O'. Sample of seal was also taken on a piece of cloth.

Form NCB-1 in triplicate was filled and the seal after use was

handed over to witness Vineet Rattan. All the recovered articles

were taken into possession vide separate seizure memo. On

suspicion that the accused persons must be carrying some

contraband in their clothes, the consent for personal search under

Section 50 of the Act was obtained and both of them consented in

writing to be searched before police officials, therefore, Dr. Shiv

Kumar was telephonically called on the spot and in his presence,

the personal search of the accused persons was got conducted,

however, no suspicious substance was recovered.

.

3. On receipt of the rukka, FIR No.170/2019, dated

17.08.2019 was registered at Police Station Sadar Solan, District

Solan, H.P., against the accused persons under Sections 21 and

29 of the NDPS Act.

4. During the course of investigation, the Investigating

Officer prepared the spot map and recorded the statements of

witnesses. Both the accused persons were arrested and their

medical examinations were conducted and MLCs were obtained.

The parcel containing contraband and 10 rupees currency note

was sent to SFSL, Junga, for chemical analysis and report of SFSL

was obtained. The videography was also conducted and CD was

prepared. During investigation, it was found that one case under

Section 21 of the NDPS Act had also been registered against

accused Onani at Police Station, Phagwara. Since, the accused

persons were found staying in India without any valid Passport and

Visa, thus, offences punishable under Section 12 of Passport Act

and Section 14 of the Foreigners Act, 1946 were also made out

against them. After completion of investigation, the charge-sheet

was presented before the trial Court.

5. Charges were framed by the learned trial Court against

.

the accused persons under Sections 21 and 29 of the NDPS Act,

Section 12 of Passport Act and Section 14 of the Foreigners Act,

1946, vide order dated 10.12.2019. The accused persons did not

plead guilty of the charges framed against them and claimed trial.

6. In order to prove its case, during trial, prosecution

examined 17 witnesses. After the closure of prosecution evidence,

the accused persons when examined under Section 313 of the

Code of Criminal Procedure, stated that they were innocent and

had been falsely implicated in the case. The accused persons did

not examine any witness in their defence.

7. Learned trial Court, vide the impugned judgment and order

dated 09.11.2022, ordered the conviction and sentence of the accused

persons under Sections 21 & 29 of NDPS Act. Hence, the present

appeal is preferred by appellant-accused Onani Mechila alias Alan.

8. I have heard learned counsel for the appellant as well as

learned Deputy Advocate General and also gone through the record

carefully.

9. The learned counsel for the appellant contended that

the prosecution has failed to prove that the heroin, in question, was

recovered from the exclusive and conscious possession of the

.

appellant-accused. He further contended that there are major and

material contradictions in the statements of the prosecution

witnesses, which render the prosecution case highly suspicious.

10. On the other hand, learned Deputy Advocate General

supported the judgment of the learned trial Court and contended

that since the charges against the accused persons have been

duly proved by the prosecution beyond reasonable doubt, the

learned trial Court has rightly convicted them on the basis of

proper appreciation of the evidence.

11. The accused persons stood charged for commission of

the offence under Section 21 & 29 of the NDPS Act for having

been found in exclusive and conscious possession of heroin,

weighing 09.90 grams. To substantiate the said charges and to

bring home the guilt of the accused persons, the prosecution

examined as many as 17 witnesses. However, the case of the

prosecution mainly rests upon the statements of PW-1 Vineet

Rattan, PW-2 Rajinder Singh Dogra, PW-4 HC Devinder, PW-6 C.

Hemant, PW-7 C. Aman Kumar and PW-17 SHO Dharam Sain,

who is the Investigating Officer of the case. These are the most

material witnesses of the prosecution who have been examined

.

primarily to prove the search, recovery and seizure of the heroin, in

question, from the exclusive and conscious possession of the

accused persons., PW-1 Vineet Rattan, while appearing in the

witness box, deposed that on 17.08.2019, at about 6:00 p.m.,

Rajinder Singh Dogra and Devinder who was employed in police

were sitting in his Dhaba, a police constable came there and asked

them to accompany him as two Nigerian citizens had been caught

by the police. Thereafter, he along with Rajinder Singh Dogra went

to the spot near his Dhaba. The police men were standing

alongwith the accused persons. The names of these persons were

disclosed to him by the police and one of the accused was holding

a bag. Due to heavy rain, the police brought the accused persons

to his Dhaba and conducted the search of the accused person in

his presence. On search of a black coloured bag carried by the

accused, on opening the first pocket of the said bag, two white

coloured pouches, one containing a solid substance and another

containing powder light brown coloured substance were found. The

bag was also found containing Rs.98,850/- which consisted of

notes of different denominations, a lighter and clothes, i.e. a lower,

vest etc. The substance recovered from the possession of accused

.

persons was tested with the help of DD kit and it was found to be

Chitta. On weightment, the substance was found to be 9.90 grams.

12. Similarly, Rajinder Singh Dogra, while appearing in the

witness box as PW-2, deposed that on 17.08.2019 at about 7:00

pm, near Taran Taaran Dhaba ahead of Brewery towards Salogra,

while he was accompanying Vineet Rattan, the police nabbed the

accused persons and took them in the Dhaba. Accused Onani was

having a bag on his right shoulder and police had opened the bag,

bag was of black colour having three compartments. From first

compartment two pouches were recovered. One pouch was

containing solid substance of white colour and other was

containing powder of white colour. Bag was also containing a

lighter in shape of gun, nikker, towel, t-shirt. The powder and

substance were checked by the police and found to be Chitta. Bag

was also containing currency to the tune of Rs.98,850/-. Then

Superintendent of police came. The police had packed the bag

and the articles in a cloth parcel and sealed. The substance on

weighing was found to be about 9 grams. Thereafter, the accused

were taken in police vehicle.

13. PW-4 HC Devender deposed that on 17.08.2019, he

.

alongwith C. Aman No.172, C. Hemant No.360, HHC Parshotam

(Driver) and SHO Dharam Sain Negi were on patrolling towards

Salogra in Solan town and at about 7 PM, the police party was

present near Brewery Taran Taran Dhaba and was checking the

traffic. Two persons of Nigerian origin were noticed coming from

Shimla side and they tried to turn away on seeing the police party.

The police party had nabbed them by chasing them. The police

party suspected some suspicious substance with them. The police

party had associated Vineet Rattan and Rajinder Dogra from Taran

Taran Dhaba as independent witnesses. One of the persons was

carrying a pithu bag on his right shoulder and that person

disclosed his name as Onani Machila and other disclosed his

name as Stenli. It was raining, as such, they took them to Taran

Taaran Dhaba. The pithu bag was checked in the presence of

witnesses. From first pocket of the bag, two polythene pouches

were recovered, one of the pouches was containing solid

substance and other was containing light brown colour powder. In

the second pocket, lighter in the shape of gun and a folded Rs.

10/- note and from third pocket a towel, two nikkers, T-shirt, Lower

and a pant were recovered. From second pocket, currency notes

.

to the tune of Rs.98,850/- of different denomination were

recovered. The substance was checked with DD kit which was

found to be Heroin/ Chitta and was weighed with scale, which was

found to be 9.90 grams.

14. PW-6 Constable Hemant deposed that on 17.08.2019,

he along with SHO Dharam Sain Negi, H.C. Devinder No. 36,

C.Aman No. 372 were on patrolling duty and traffic checking in

government vehicle being driven by HHC Purshotam towards

Chamabaghat Salogra and at about 7 PM, the police party was

checking traffic at Taran Taaran hotel, at a distance of 50 meters

towards Salogra, two persons of Nigerian origin were standing who

on seeing the police party had become perplexed and tried to turn

away towards Solagra. The SHO along with police party nabbed

them by chasing. One of the persons of Nigerien origin disclosed

his name as Onani Machila and was carrying a pithu bag on his

right shoulder of black colour having words scribed Safari and the

other accused disclosed his name as Stenli. On the basis of

suspicion, two persons from Taran Taran Dhaba, Vineet Rattan and

Rajinder Singh were associated in investigation. HC Devinder was

also associated as witness. As it was raining heavily, the police

.

party alongwith accused and witnesses went inside the room of

hotel Taran Taran. SHO carried out the search of the bag. The bag

was having three pockets, from the front pocket, two polythene

plastic pouches were recovered, one of them contained solid

substance of light brown colour and other contained powder of light

brown colour. From second pocket, a lighter in the shape of gun,

one folded Rs.10/- note and clothes i.e. towel, t-shirt, nikker, etc.

were recovered. From the third pocket, cash to the tune of

Rs.98,850/- of different denominations of Indian currency was

recovered. The substance was checked with DD kit and was found

to be Chitta/ Heroin. The substance was weighed with a digital

weighing machine along with polythene and it was found to be

9.90 grams.

15. PW-7 Constable Aman Kumar stated that on

17.08.2019, he alongwith SHO Dharam Sain Negi, HC Devinder

No.36, C. Hemant Kumar No.360 were in government vehicle

being driven by HHC Purshotam Dass for patrolling and traffic

checking towards Chambaghat and Salogra and at about 7.00 PM,

when the police party was present near Taran Taaran Dhaba, from

Salogra side, two Negros were coming towards Solan, on seeing

.

the police party, they became perplexed and tried to turn away.

The SHO and the police party nabbed the accused persons. One

of the Negro was carrying pithu bag on his right shoulder and he

disclosed his name as Onani Machila and other disclosed his

name as Stenli. Pithu bag was of black colour having words Safari.

On suspicion, the police party associated Vineet Rattan and

Rajinder as witnesses. Due to rain, accused and witnesses and

police party went inside the room of Taran Taaran Dhaba. The bag

carried by Onani Machila was having three pockets. From the first

pocket, two polythene pouches, one pouch contained light brown

colour solid substance and other pouch contained light brown

colour powder were recovered. From second pocket, a folded

Rs.10/- note and one lighter in the shape of gun and the clothes

i.e. underwear t-shirt etc were recovered. From third pocket Indian

currency in different denominations of Rs.98,850/- was recovered.

The substance recovered was checked by DD kit and was found to

be heroin/chitta. The substance alongwith pouch was weighed with

weighing machine and weight was found to be 9.90 grams.

16. PW-17 Inspector Dharam Sen Negi stated that on

.

17.08.2019, he alongwith HC Devinder, C. Aman, C.Hemant and

driver Purshotam proceeded towards Solan-Chambaghat-Sologar

in connection with patrolling duty and at about 7:00 PM when they

were present at Taaran Taran Dhaba near Brewery, at the same

time two Nigerian persons came from Salogra, who on seeing the

police official got perplexed and tried to run away but were nabbed.

On asking their names, one disclosed his name as Onani holding a

pithu bag on his right shoulder and other disclosed his name as

Stenli. On suspicion of having some contraband, two independent

witnesses namely Vineet Rattan and Rajinder Singh who were

present near Taaran Taran Hotel were associated. There was

heavy rain at that time, as such, they entered inside the Taaran

Taran Hotel where in the presence of independent witnesses

Vineet Rattan & Rajinder Singh as well as HC Devinder Singh, the

search of pithu bag was conducted. On opening the front pocket of

the bag, two plastic pouches, one containing solid substance and

another containing powder substance were recovered. From the

middle pocket one rolled Rs.10/- note, a lighter in the gun shape

and some apparels were recovered. From the third pocket

currency notes in the sum of Rs. 98,850/- of different

.

denominations were recovered. Thereafter DD kit from police

station was brought by HC Kuldeep. On checking the substance

from DD kit, it was found to be heroin/ Chitta. Both plastic pouches

were weighed with the help of weighing machine and weight was

found to be 9.90 grams (heroin/chitta). Thereafter, both pouches

and rolled note of Rs.10/- were put in a cloth parcel and sealed

with five seals of "O". Currency notes amounting to Rs.98,850/-

and lighter in the shape of gun were also put in a parcel and

sealed with eight seals impression of "O". Clothes and pithoo bag

were also put in a parcel and sealed with four seals impression of

"O". Sample seal "O" was taken on a separate piece of cloth which

is Ext. PW1/E. NCB form in triplicate was prepared which is

Ext.PW17/A. Seal after its use was given to witness Vineet Rattan.

All parcels were taken into possession vide memo Ext. PW1/F.

On the basis of suspicion, consent memo under section 50 of

the Act was prepared for personal search and the accused

persons disclosed that they wanted to get searched in

the presence of gazetted police officer. On telephonic

intimation Dr. Shiv Kumar, Addl. SP, Solan came to the

spot and in his presence both the accused persons were searched

.

personally but nothing incriminating was found.

17. After carefully perusing the statements of the aforesaid

material witnesses of the prosecution, I did not find any infirmity in

their statements so far as recovery of heroin in question from the

possession of the accused persons is concerned. All of them

successfully withstood the test of cross-examination and nothing

favourable could be extracted from their cross-examination. Their

statements are quite natural, consistent and reliable on the point of

recovery of charas and there is no reason to disbelieve them.

18. Learned counsel for the appellant next contended that

there are material contradictions in the statements of the aforesaid

material witnesses, i.e. PW-1 Vineet Rattan, PW-2 Rajinder Singh

Dogra, PW-4 HC Devinder, PW-6 C. Hemant, PW-7 C. Aman

Kumar and PW-17 SHO Dharam Sain, about the manner of

conducting the search and recovery, as such, the prosecution

story is doubtful regarding the recovery of heroin in question.

However, it is settled law that an undue importance should not be

attached to omissions, contradictions and discrepancies which do

not go to the heart of the matter and shake the basic version of the

prosecution witnesses. The whole testimony of a witness cannot

.

be rejected due to some minor contradictions and discrepancies so

long it does not affect the core of the prosecution case. In Narayan

Chetanram Chaudhary and another Versus State of

Mahasrashtra, (2000) 8 Supreme Court Cases 457, the Hon'ble

Supreme Court has held that minor contradictions are bound to

appear in the statements of truthful witnesses as memory

sometimes plays false and the sense of observation differ from

person to person. The relevant para of the judgment reads as

under:-

"42. Only such omissions which amount to contradiction in material particulars can be used to discredit the testimony of

the witness. The omission in the police statement by itself would not necessarily render the testimony of witness

unreliable. When the version given by the witness in the court is different in material particulars from that disclosed in his

earlier statements, the case of the prosecution becomes doubtful and not otherwise. Minor contradictions are bound to appear in the statements of truthful witnesses as memory sometimes plays false and the sense of observation differ from person to person. The omissions in the earlier statement if found to be of trivial details, as in the present case, the same would not cause any dent in the testimony of PW2. Even if there is contradiction of statement of a witness on any material point, that is no ground to reject the whole of the testimony of such witness...."

19. Similarly, in Krishna Mochi and others V. State of

.

Bihar, AIR 2002 Supreme Court 1965, the Hon'ble Supreme

Court has held that normal discrepancies in evidence are those

which are due to normal errors of observation, normal errors of

memory due to lapse of time, due to mental disposition such as

shock and horror at the time of occurrence and those are always

there however honest and truthful a witness may be. Relevant

portion of para 94 of the judgment reads as under:-

"94..........normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of

memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be.

Material discrepancies are those which are not normal, and

not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's

case, material discrepancies do so....."

20. In Anuj Singh @ Ramanuj Singh @ Seth Singh

Versus The State of Bihar, 2022 Live Law (SC) 402, the Hon'ble

Supreme Court, while appreciating the evidence in a criminal trial,

held that only contradictions in material particulars and not minor

contradictions can be a ground to discredit the testimony of the

witnesses. Relevant portion of para-17 of the judgment reads as

.

under:-

"17...........However, the testimony of a witness in a criminal trial cannot be discarded merely because of minor

contradictions or omission as observed by this court in Narayan Chetanram Chaudhary & Anr. Vs. State of Maharashtra. This Court while considering the issue of

contradictions in the testimony, while appreciating the evidence in a criminal trial, held that only contradictions in material particulars and not minor contradictions can be a

ground to discredit the testimony of the witnesses....."

21. In the instant case, after minutely going through the

testimonies of the aforesaid prosecution witnesses, this Court did

not find any material contradictions therein, which go to the root of

the case, as such, their statements cannot be discredited. Hence,

no benefit can be derived by the accused from the minor

contradictions as pointed out by the learned counsel for the

appellant.

22. Consequently, in view of the detailed discussion made

hereinabove, there is no illegality, perversity and infirmity in the

impugned judgment of conviction passed by the learned trial Court,

which has been passed on proper appreciation of evidence as well

as the law, as such, the same is upheld.

23. Learned counsel for the appellant lastly contended that

.

the accused is the first offender and a young man with a family to

support and in view of the quantity of heroin involved, the sentence

awarded to him by the learned trial Court may be reduced.

Admittedly, the quantity of the heroin recovered from the

possession of the accused is 9.90 grams. Since the appellant is

the first offender and he has a family to support, therefore, in such

circumstances, this Court is of the opinion that he should be given

an opportunity to mend his ways, so as to bring him in the

mainstream of the society, as such, the sentence imposed by the

learned trial Court on the accused deserves to be reduced.

24. The accused is behind the bars since 17.08.2019 and

he has already undergone the sentence of about three years and

eleven months, as such, taking into consideration the quantity of

heroin recovered from the possession of the appellant, the

impugned order of sentence passed by learned Special Judge-III,

Solan, District Solan, H.P., is modified to the extent that sentence

imposed upon the accused, i.e. five years, is reduced to the period

already undergone by the appellant-accused and he be set at

liberty immediately, if not required in any other case. Office is

directed to issue release warrant forthwith.

.

25. In view of the provisions of Section 437-A Code of

Criminal Procedure, 1973, appellant Onani Mechila alias Alan, son

of Shri George Meechila, is directed to furnish a personal bond in

the sum of Rs.1,00,000/- with one local surety in the like amount to

the satisfaction of the Registrar (Judicial) of this Court, which shall

be effective for a period of six months, with stipulation that in the

event of Special Leave Petition being filed against this judgment or

on grant of leave, the appellant aforesaid, on receipt of notice

thereof, shall appear before the Hon'ble Supreme Court.

26. In the above terms, the appeal is disposed of, so also

the pending application(s), if any.

( Sushil Kukreja ) Judge July 13, 2023

(VH)