Decided On: 20.10.2023 vs State Of Himachal Pradesh
2023 Latest Caselaw 16955 HP

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

Criminal Appeal No. 411 of 2016 Reserved on: 25.08.2023

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Decided on: 20.10.2023 ____________________________________________________ Pranay Vishwas

...Appellant Versus State of Himachal Pradesh ...Respondent

____________________________________________________ Coram Hon'ble Mr. Justice Sushil Kukreja, Judge

Whether approved for reporting?

____________________________________________________ For the appellant: Mr. Vinod Chauhan, Advocate. For the respondent: Mr. Jitender Kumar Sharma, Additional Advocate General.

Sushil Kukreja, Judge

The instant appeal has been preferred by the

appellant-accused (hereinafter referred to as 'the accused"),

laying challenge to the judgment of conviction and order of

sentence dated 03.10.2015, passed by learned Special Judge-II,

Shimla, District Shimla, H.P., in Sessions Trial No.9-S/7 of 2015,

whereby he was convicted for the commission of the offence

punishable under Sections 21 & 22 of the Narcotic Drugs and

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

Psychotropic Substances Act, 1985 (for short, "the NDPS Act)

and sentenced to undergo rigorous imprisonment for a term of

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three years and to pay fine of Rs.20,000/- and in default of

payment of fine, he shall further undergo simple imprisonment for

a period of six months.

2. Briefly stated the facts of the case, which emerge

from the record, are that on 07.10.2014, the police team was on

routine traffic checking near Fediz bridge in official vehicle

bearing registration No. HP07B-0325 and at around 07:45 p.m.,

a private bus bearing registration No.UA-12-8028 came from

Vikas Nagar side, which was enroute to Tiuni and during usual

checking of the said bus, the police noticed a person sitting on

the last seat of the bus with a black and red coloured pithhu bag.

On checking the bag of the said person, it was found stuffed with

100 bottles of Rexcof, each weighing 100ml, contained codeine

phosphate. Thereafter, in presence of the independent witnesses,

namely, Moti Singh and Sita Ram, the said person disclosed his

name as Pranay Vishwas (accused ) and on being asked, he

failed to produce any permit/license for possessing the aforesaid

recovered contraband. On the receipt of the rukka, an FIR was

registered under the apt Sections of NDPS Act against the

accused. Thereafter, the aforesaid bottles of contraband were

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sealed in a plastic sack with seal impression 'H' and were taken

into possession. Sample seal impression 'H' was taken on a

separate piece of cloth and the case property was produced

before the concerned SHO at Police Station Nerwa, who resealed

the same with seal impression 'A'. The police clicked photographs

and sent the special report to Additional Superintendent of Police,

Rural. NCB forms, in triplicate, were filled and the case property

was deposited with MHC, who entered the same in malkhana

register. Subsequently, the case property was sent to FSL Junga,

through constable Rajinder. The police recorded the statements

of the witnesses and on receipt of report from FSL, the charge-

sheet was presented before the learned trial Court.

3. Charge was framed by the learned trial Court against

the accused under Sections 21 & 22 of the NDPS Act, vide order

dated 28.02.2015. Accused did not plead guilty of the charge

framed against him and claimed trial.

4. In order to prove its case, the prosecution examined

as many as eleven witnesses. Thereafter, the statement of

accused was recorded under Section 313 Cr.P.C., wherein, he

denied all set of incriminating evidence led by the prosecution

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against him, besides pleaded that he had been falsely implicated

in the case. The accused did not examine any witness in his

defence.

5. On the basis of evidence led on record by the

prosecution, the learned trial Court held the accused guilty of his

having committed offences punishable under Sections 21 and 22

of NDPS Act and sentenced him as per description given

hereinabove.

6. Being aggrieved and dissatisfied with the judgment of

conviction and order of sentence passed by the learned trial

Court, the accused approached this Court by way of the instant

appeal, praying for his acquittal, after setting aside the aforesaid

judgment of conviction and order of sentence.

7. The learned counsel for the appellant contended that

the prosecution has failed to prove that the contraband, in

question, was recovered from the exclusive and conscious

possession of the appellant-accused. He further contended that

there are lots of contradictions in the testimonies of the

prosecution witnesses, hence, the appellant deserves to be

acquitted. He also contended that provisions of Section 50 of

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NDPS Act have not been complied with by the investigating

agency while conducting personal search of the accused.

8. On the other hand, learned Additional Advocate

General supported the judgment of the learned trial Court and

contended that since the charge against the accused has been

duly proved by the prosecution beyond reasonable doubt, the

learned trial Court has rightly convicted him on the basis of

proper appreciation of evidence.

9. I have heard the learned counsel for the appellant as

well as the learned Additional Advocate General and also gone

through the record carefully.

10. The accused stood charged for commission of the

offence under Sections 21 & 22 of the NDPS Act for having been

found in exclusive and conscious possession of 100 vials of

Rexcof 100 ml each, containing codeine phosphate, without any

valid permit or licence. To substantiate the said charges and to

bring home the guilt of the accused, the prosecution examined as

many as eleven witnesses. However, the case of the prosecution

mainly rests upon the statements of PW-1 Moti Singh, PW-2

Kesar Singh, PW-3 C. Rakesh Kumar, PW-4 C. Rajinder Singh

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and PW-10 HC Ramesh Chand, 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 100 Rexcof bottles in question

from the exclusive and conscious possession of the accused.

11. PW-1 Moti Singh deposed that on 07.10.2014, the

police laid a nakka near Fediz bridge and at around 07:45 p.m. a

bus bearing registration No. UA-12-8028, came from Vikas Nagar

and while checking the bus, Constable Rakesh found a person

sitting on the last seat of the bus and he was carrying a pithhu

bag, which, on checking, found stuffed with Rexcof bottles. He

further deposed that he alongwith Sita Ram went inside the bus

and other police officials were also called inside the bus. The

person nabbed in possession of the aforesaid contraband was

alighted from the bus by HC Ramesh Chand, who disclosed his

name as Pranay Vishwas. The accused could not produce any

permit/licence qua the aforesaid contraband. The recovered 100

bottles of Rexcof were put in the same bag and the bag was put

in a plastic sack, which was sealed. Photographs were clicked on

the spot and sample seal was taken on a separate piece of cloth

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Ex. PW-1/A and recovered contraband was taken into possession

vide memo Ex.PW-1/B. PW-2 Kesar Singh deposed that he was

deputed as conductor in bus No. UA-12-8028 and he did not

remember the date, time and year of the occurrence. He

deposed that the accused was traveling in the bus and sitting on

the last seat. The accused was carrying a pithhu bag, which he

was holding with his hands. At Fediz bridge, the police

conducted search of the bus and found the accused in

possession of a bag, which was filled with poisonous bottles. He

has further deposed that accused alighted from the bus and he

was taken into custody. PW-3 Constable Rakesh Kumar deposed

that on 07.10.2014 Head Constable Ramesh and Constable

Rajinder were on routine checking/traffic duty on the spot. Moti

Singh and Sita Ram were also performing their duty in the control

room. He has further stated that at 07:45 p.m., a private bus

bearing registration No. UA-12-8028 came from Vikas Nagar side

and it was stopped for checking. He entered the bus and found

that the accused sitting on the last seat of the bus, who was

carrying a pithhu bag. On checking the said bag, it was found

stuffed with 100 Rexcof bottles, so he informed HC Ramesh, who

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alongwith Moti Singh and Sita Ram entered the bus. This witness

also deposed that the accused failed to produce any

licence/permit for possessing Rexcof and the said bottles of

contraband were kept inside the bag and sealed in a plastic sack

with a rope by using seal impression 'H'. PW-4, Constable

Rajinder Singh, also supported the above version of PW-3 and in

addition to the above deposition, stated that rukka, Ex.PW-4/A

alongwith the case property was given to him, which he carried to

Police Station Nerwa and produced the same before ASI/SHO

Kuldeep Singh. He has further deposed that the case FIR was

handed over to the Investigating Officer at Nerwa bazar and on

09.10.2014 LHC Shamim handed over to him the case property,

i.e., 100 bottles of Rexcof, which was sealed with seal

impressions 'H' and 'A', alongwith seal sample, NCB form, vide

RC No. 55/14, dated 09.10.2014, which he deposited with FSL,

Junga on the same day. He has deposed that on 09.10.2014, at

around 11:00 a.m., he produced the Special Report before

Additional S.P. Sandeep Dhawal, in his office and on 10.10.2014

he handed over the receipt of Special Report to Dy.S.P. Chopal.

PW-10, HC Ramesh Chand, deposed that on 07.10.2014 he

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alongwith HHC Virender Singh, Constable Rajender and

Constable/Driver HHC Madan left towards Fadiz bridge in the

official vehicle bearing registration No. HP-07B-0325. He further

deposed that it was apple season and they laid a nakka at Fadiz

at 07:00 p.m. and at about 07:45 p.m. a private bus bearing

registration No. UA-12-8028 came from Vikasnagar and it was

enroute to Tiuni, which was stopped and Constable Rakesh went

inside the bus, who found that the accused was sitting on the last

seat of the bus and was carrying a pithhu bag. On checking the

said bag, it was found containing 100 Rexcof bottles of codeine

phosphate. The bottles, after counting, were again kept in the

bag and bag was kept inside a plastic sack by tying it with a rope

and it was sealed with seal having impression 'H'. Thereafter,

rukka was sent to Police Station Nerwa through Constable

Rajender, whereupon FIR was registered. Spot map was

prepared, photographs were clicked and the statements of the

witnesses were recorded. He has further deposed that Special

Report was sent to Additional SP Shimla through Constable

Rajendra.

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12. After carefully perusing the statements of the

aforesaid witnesses of the prosecution, I did not find any infirmity

in their statements so far as recovery of 100 vials of Rexcof, each

weighing 100 ml, containing codeine phosphate, 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 contraband from the exclusive

and conscious possession of the accused and there is no reason

to disbelieve them who with stood the test of cross-examination

and with whom the accused has not alleged any ill-will or grudge

so as to falsely implicate him in the case

13. Learned counsel for the appellant contended that

there are material contradictions in the statements of the

aforesaid material prosecution witnesses about the manner of

conducting the search and recovery, as such, the prosecution

story is doubtful regarding the recovery of contraband 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

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the prosecution witnesses. The whole testimony of a witness

cannot be rejected due to some minor contradictions and

discrepancies so long as 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...."

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

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

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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....."

15. 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

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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....."

16. 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.

17. Learned counsel for the appellant next contended that

the provisions of Section 50 of NDPS Act have not been complied

with while conducting the search of the accused, as such, the

learned trial Court has committed grave illegality in convicting the

accused. However, this contention of the learned counsel for the

appellant deserves to be rejected as the contraband was not

recovered from the personal search of the accused, rather it was

recovered from the pithhu bag, which was being carried by him. It

is by now well settled that the question of compliance or non-

compliance with Section 50 of the NDPS Act is relevant only

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where search of a person is involved and the said section is

neither applicable nor attracted where no search of a person is

involved. Search and recovery from a bag, briefcase, container,

etc. does not come within the ambit of Section 50 of the NDPS

Act, because, Section 50 expressly speaks of search of person

only. In Madan Lal and another Versus State of HP, (2003) 7

SCC 465, it has been held by the Hon'ble Supreme Court that

Section 50 only applies in case of personal search of a person. It

does not extend to search of a vehicle or a container or a bag or

premises. The relevant para of the judgment reads as under:-:-

"16. A bare reading of Section 50 shows that it only

applies in case of personal search of a person. It does not extend to search of a vehicle or a container or a bag or premises. (See Kalema Tumba v. State of Maharashtra,

State of Punjab v. Baldev Singh and Gurbax Singh v. State of Haryana). The language of Section 50 is implicitly clear that the search has to be in relation to a person as

contrasted to search of premises, vehicles or articles. This position was settled beyond doubt by the Constitution Bench in Baldev Singh case. Above being the position, the contention regarding non-compliance with Section 50 of the Act is also without any substance."

18. In State of HP Versus Pawan Kumar, (2005) 4 SCC

350, it has been held by the Hon'ble Supreme Court that a bag,

briefcase or any such article or container, etc. can, under no

circumstances, be treated as body of a human being and bare

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reading of Section 50 shows that it only applies in case of

personal search of a person. It does not extend to search of a

vehicle or a container or a bag or premises. The relevant para of

the judgment reads as under:-

"11. 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 of 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. . A

bare reading of Section 50 shows that it only applies in case of personal search of a person. It does not extend to search of a vehicle or a container or a bag or premises.

19. In the instant case, seizure had taken place from the

pithoo bag carried by the accused on his shoulder. Therefore,

Section 50 of the Act does not apply.

20. No other point was urged before me.

21. Consequently, in view of the detailed discussion made

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

impugned judgment of conviction and order of sentence dated

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03.10.20215, passed by the learned Special Judge-II, Shimla,

H.P., which have been passed on proper appreciation of evidence

as well as the law, as such, the same are upheld and the present

appeal is dismissed, being devoid of any merits.

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

the pending application(s), if any.

( Sushil Kukreja ) Judge

October 20, 2023

(VH)