Himachal Pradesh High Court
Swaroop Chand vs State Of Himachal Pradesh on 5 August, 2024
Bench: Tarlok Singh Chauhan, Sushil Kukreja
Neutral Citation No. ( 2024:HHC:6332 )
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA.
.
Criminal Appeal No.194 of 2021.
Reserved on: 01.08.2024.
Date of decision: 05.08.2024
Swaroop Chand ...Appellant.
Versus
State of Himachal Pradesh ...Respondent.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon'ble Mr. Justice Sushil Kukreja, Judge.
Whether approved for reporting? No
For the Appellant : Mr. Yashveer Singh Rathore,
Advocate.
For the Respondent: Mr. I.N. Mehta, Senior Additional
Advocate General with Mr.
Navlesh Verma, Ms. Sharmila
Patial, Additional Advocates
General and Mr. J. S. Guleria,
Deputy Advocate General.
Tarlok Singh Chauhan, Judge
The appellant has been convicted and sentenced
by the learned Special Judge-II, Kinnaur at Rampur
Bushehar, H.P. to undergo rigorous imprisonment for a
period of ten years and to pay a fine of Rs.1,00,000/- ( One
Lakh) and in default of payment of fine to further undergo
Neutral Citation No. ( 2024:HHC:6332 )
simple imprisonment for one year for the offence
punishable under Section 20 of the Narcotic Drugs and
.
Psychotropic Substances Act, (for short, "ND&PS Act") and
aggrieved thereby, he has filed the instant appeal.
2. The prosecution case, in a brief, is that on
15.02.2019 at about 12.30 p.m., SI Jagjeet Singh along with
SI Layak Ram, HASI Dinesh Kumar, HHC Balak Ram, HHC
Rajesh Kumar and Constable Gulbadan, Police Post, Sainj,
had put a 'naka' about 400 metres ahead of Sainj Bazaar
towards Rampur. On the same day, at about 1.00 p.m., a
person, who disclosed his name to be Rajinder Kumar, son
of Sh. Ram Lal, resident of Solan, came on the spot and
was going from Sainj to Bithal side. After sometime,
accused also appeared on the spot from Sainj Bazaar side,
who was carrying a 'pithu' bag blue grey coloured on his
right shoulder and he got perplexed on seeing the police
party and started walking hurriedly towards Rampur. Police
suspected that the accused might be having some
objectionable substance in his possession. On the basis of
the suspicion, the accused was stopped and, on inquiry, he
disclosed his name to be Swaroop Chand son of Shri Chandu
Ram, resident of village Pankhad, Post Office Ghad, Tehsil
Neutral Citation No. ( 2024:HHC:6332 )
Anni, District Kullu, H.P. Police asked the accused to give
search of his 'pithu' bag which he was carrying on his right
.
shoulder but he was reluctant to give search of his bag on
the basis of which the police suspected that he might be
carrying some objectionable substance in his bag.
3. It is further the case of the prosecution that on
this Rajinder Kumar was associated as witness and since
no other witness was available on the
r spot, constable
Gulbadan No. 1040 was also associated as witness. The
'pithu' bag was searched in presence of constable Gulbadan
and witness Rajinder and it was found containing a white
coloured bag inside which black colour substance in the
shape of balls was recovered. The black coloured
substance was also checked with drug detection kit and on
the basis of smell and experience, the same was found to
be 'charas'. The 'charas' along with carry bag was weighed
with the help of electronic weighing machine which was
available in the I.O. kit and it was found 1.376 KG.
Thereafter, carry bag along with 'charas' was put in the
same 'pithu' bag in the same manner and 'pithu' bag was
put in a cloth parcel and sealed with eight seals of
impression 'S' and sample seal impression Ext. PW-1/A was
Neutral Citation No. ( 2024:HHC:6332 )
obtained on white cloth. The relevant columns of NCB form
Ext. PW-1/B in triplicate were filled on the spot and seal
.
impression 'S' was also embossed on NCB form. The case
property was taken into possession vide seizure memo Ext.
PW-1/C in presence of witness Rajinder Kumar and
constable Gulbadan and seal after use was handed over to
constable Gulbadan. PW1 SI Jagjeet Singh prepared rukka
Ext. PW-1/D and sent the same through HHC Rajesh Kumar
along with case property, NCB form, sample seal and copy
of recovery memo to police station, Kumarsain, on the basis
of which FIR Ext. PW-3/A was registered. After receiving the
case property, PW-11 resealed the same with three seals of
seal 'H' and issued certificate Ext. PW-11/A. He also
obtained sample seal 'H' on white cloth as Ext. PW-11/B.
After resealing the case property, the same was handed
over to MHC Rajesh, Police Station, Kumarsain, who
deposited the same in 'malkhana' vide entry Ext. PW-3/C on
the same day.
4. It is also the case of the prosecution that after
receiving rukka Ext. PW-1/D, PW-11 Inspector Phool Chand
proceeded towards the spot where SI Jagjeet Singh handed
over the case file to him for further investigation regarding
Neutral Citation No. ( 2024:HHC:6332 )
which memo Ext. PW-1/E was prepared. SI Jagjeet Singh
also handed over original recovery memo Ext. PW-1/C,
.
duplicate copy of rukka Ext. PW-1/B as well as zimini No.1
and sample seal to Inspector Phool Chand on the spot and
also handed over the accused to him. PW-6 HC Rajesh
Kumar clicked photographs Ext. PW6/A1 to Ext. PW6/A17
and also issued certificate in this regard Ext. PW-6/B. PW-11
SHO Phool Singh prepared special report in this case and on
17.02.2019, HHC Vikas Sood handed over the special report
Ext. PW-4/A to SDPO, Rampur. SHO Phool Singh prepared
spot map Ext. PW-11/C and recorded the statements of
witnesses SI Jagjeet, Rajinder Kumar, Constable Gulbadan
and HHC Rajesh Kumar and formally arrested accused vide
memo Ext. PW-11/D. PW-9 Vinesh Kumar, MHC, Police
Station, Kumarsain, sent the case property to SFSL, Junga
through PW-10 constable Rakesh Kumar No. 1049 along
with sample seal, NCB form in triplicate and photocopy of
inventory certificate, who in turn, deposited the same there
on the same day and handed over its receipt to MHC on
next day. PW-9 also put rapat Ext. PW-9/B in this regard and
he also put rapat Ext. PW-9/C. The report Ext.PX of SFSL
was obtained vide which the exhibit was found to be extract
Neutral Citation No. ( 2024:HHC:6332 )
of cannabis and sample of 'charas'. After completion of
investigation, SHO, Police Station, Kumarsain, prepared the
.
challan against the accused for the commission of the
offence under Section 20 of the Act and presented the same
in the Court.
5. On finding a prima facie case, charge under
Section 20 of the Act was framed against the accused to
which he pleaded not guilty and claimed trial.
6. The prosecution in order to prove its case
examined as many as 11 witnesses and on completion of
prosecution evidence, entire incriminating circumstances
were put to the appellant in the statement recorded under
Section 313 Cr.P.C. wherein he denied the prosecution
allegations in toto and pleaded his innocence. The
appellant, however, did not choose to lead any evidence in
defence.
7. It is argued by Shri Yashveer Singh Rathore,
Advocate, for the appellant that the findings recorded by
the learned Special Judge are absolutely perverse. It is
firstly contended by the learned counsel for the appellant
that the prosecution has failed to examine independent
witness Rajinder Kumar, who otherwise was a stock witness.
Neutral Citation No. ( 2024:HHC:6332 )
That apart, there are major discrepancies and
contradictions in the testimonies of the official witnesses
.
which entitle the appellant to be acquitted.
8. On the other hand, Mr. I.N. Mehta, learned Senior
Additional Advocate General would contend that the
findings recorded by the learned Special Judge are
absolutely correct and it is more than settled that conviction
can be based on the basis of the testimonies of the official
witnesses and moreover there are no inconsistencies or
contradictions in the statements of the official witnesses so
as to entitle the acquittal of the appellant.
9. We have heard the learned counsel for the
parties and have gone through the records of the case
carefully.
10. As regards non-association of the independent
witnesses, it is now well settled that non-association of the
independent witnesses or non supporting of the
prosecution version by independent witnesses in itself is not
a ground for acquittal of appellant/accused. It is also well
settled that the testimonies of the official witnesses,
including police officials carry the same evidentiary value as
the testimony of any other person. The only difference is
Neutral Citation No. ( 2024:HHC:6332 )
that the Court has to be most circumspect while
appreciating the evidence of the official witnesses to rule
.
out the possibility of false implication of the accused,
especially when such a plea is specifically raised by the
defence. Therefore, while scrutinising the evidence of the
official witnesses, in case where independent witnesses are
not associated, contradictions and inconsistencies in the
testimonies of such witnesses are required to be taken into
account and given due weightage, unless satisfactorily
explained. However, the contradiction must be material and
not trivial one, that alone would assume significance.
11. Evidently, this is a case of chance recovery,
therefore, the police party was under no obligation to join
independent witnesses while going for patrolling duty and
the association of any person after effecting the recovery
would be meaningless.
12. In taking this view, we are duly fortified by the
observations of the Hon'ble Supreme Court in Kashmir
Singh vs. State of Punjab, 1999 (1) SCC 130, wherein it
was held as under:-
"3. Learned Counsel for the appellant has taken us
through the evidence recorded by the prosecution as
Neutral Citation No. ( 2024:HHC:6332 )
also the judgment under appeal. Except for the
comment that the prosecution is supported by two
.
police officials and not by any independent witness
no other comment against the prosecution is
otherwise offered. This comment is not of any value
since the police party was on patrolling duty and they
were not required to take along independent
witnesses to support a recovery if and when made. It
has come in the evidence of ASI Jangir Singh that
after the recovery had been effected some people
had passed by. Even so obtaining their counter-
signatures on the documents already prepared would
not have lent any further credence to the prosecution
version."
13. Similar reiteration of law can be found in the
judgment rendered by the learned Single Judge of this Court
in Avtar @ Tarri vs. State of H.P. (2022) Supreme HP
345, wherein it was observed as under:-
"24. As regards the second leg of the argument
raised by learned counsel for the appellant, it cannot
be said to be of much relevance in the given facts of
the case. The fact situation was that the police party
had laid the 'nakka' and immediately thereafter had
spotted the appellant at some distance, who got
perplexed and started walking back. The conduct of
the appellant was sufficient to raise suspicion in the
minds of police officials. At that stage, had the
appellant not been apprehended immediately, police
could have lost the opportunity to recover the
Neutral Citation No. ( 2024:HHC:6332 )
contraband. Looking from another angle, the
relevance of independent witnesses could be there,
.
when such witnesses were immediately available or
had already been associated at the place of 'nakka'.
These, however, are not mandatory conditions and
will always depend on the fact situation of each and
every case. The reason is that once the person is
apprehended and is with police, a subsequent
association of independent witnesses, may not be of
much help. In such events, the manipulation, if any,
cannot be ruled out."
14. In Raveen Kumar vs. State of H.P. AIR 2020
SC 5375, the Hon'ble Supreme Court held that non-
association of independent witness will not be fatal to the
prosecution case, however, the Court will have to scrutnise
the statements of prosecution witnesses. It was observed 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
scrutinising the testimonies of the police officers,
which if found reliable can form the basis of a
successful conviction."
Neutral Citation No. ( 2024:HHC:6332 )
15. It shall be profitable to refer to the following
observations of the Hon'ble Supreme Court in Riwaz Khan
.
vs. State of Chattisgarh AIR 2020 SC 4297:-
8.2 Having gone through the entire evidence on
record and the findings recorded by the courts below,
we are of the opinion that in the present case the
prosecution has been successful in proving the case
against the accused by examining the witnesses
PW3, PW4, PW5, PW7 and PW8. It is true that all the
aforesaid witnesses are police officials and two
independent witnesses who were panchnama
witnesses had turned hostile. However, all the
aforesaid police witnesses are found to be reliable
and trustworthy. All of them have been thoroughly
cross-examined by the defence. There is no
allegation of any enmity between the police
witnesses and the accused. No such defence has
been taken in the statement under Section 313,
Cr.P.C. There is no law that the evidence of police
officials, unless supported by independent evidence,
is to be discarded and/or unworthy of acceptance.
It is settled law that the testimony of the official
witnesses cannot be rejected on the ground of non-
corroboration by independent witness. As observed
and held by this Court in catena of decisions,
examination of independent witnesses is not an
indispensable requirement and such non-examination
is not necessarily fatal to the prosecution case, [see
Pardeep Kumar (supra)].
Neutral Citation No. ( 2024:HHC:6332 )
In the recent decision in the case of Surinder Kumar
v. State of Punjab, (2020) 2 SCC 563, while
.
considering somewhat similar submission of non
examination of independent witnesses, while dealing
with the offence under the NDPS Act, in paragraphs
15 and 16, this Court observed and held as under:
"15. The judgment in Jarnail Singh v. State
of Punjab (2011) 3 SCC 521, relied on by the
counsel for the respondent State also
supports the case of the prosecution. In the
aforesaid judgment, this Court has held that
merely because prosecution did not
examine any independent witness, would
not necessarily lead to conclusion that the
accused was falsely implicated. The
evidence of official witnesses cannot be
distrusted and disbelieved, merely on
account of their official status.
16. In State (NCT of Delhi) v. Sunil, (2011) 1
SCC 652, it was held as under: (SCC p. 655)
"It is an archaic notion that actions of the
police officer should be approached with
initial distrust. It is time now to start placing
at least initial trust on the actions and the
documents made by the police. At any rate,
the court cannot start with the presumption
that the police records are untrustworthy.
As a proposition of law, the presumption should be
the other way round. That official acts of the police
Neutral Citation No. ( 2024:HHC:6332 )
have been regularly performed is a wise principle of
presumption and recognised even by the legislature.
.
Applying the law laid down by this Court on the
evidence of police officials/police witnesses to the
facts of the case in hand, referred to hereinabove, we
are of the opinion as the police witnesses are found to
be reliable and trustworthy, no error has been
committed by both the courts below in convicting the
accused relying upon the deposition of the police
officials."
16. Similar reiteration of law can be found in a
judgment of the Coordinate Bench of this Court in Criminal
Appeal No.202 of 2020, titled as Dillo Begum vs. State
of H.P., decided on 27.03.2024 and also in a very recent
judgment of this Court in Criminal Appeal No.122 of
2020 titled as Kehar Singh and another vs. State of
H.P., decided on 01.07.2024.
17. Having come to the conclusion that non-
association of independent witnesses cannot in itself be a
ground for acquittal, we may now advert to the testimonies
of the official witnesses to find out the so-called
contradictions.
18. However, before doing so, we need to remember
that in all criminal cases normally discrepancies are bound
Neutral Citation No. ( 2024:HHC:6332 )
to occur in the depositions of the witnesses due to normal
errors of observation, normal errors of memory, due to
.
lapse of time or due to mental disposition etc. Where
omissions amount to contradictions, creating a serious
doubt about the truthfulness of the witnesses and other
witnesses also make material improvements while deposing
before the Court, such evidence cannot be safely relied
upon. Furthermore, even if, a witness deposes falsely on a
point, it does not mean that his entire testimony has to be
disbelieved. Rather, it is the duty of the Court to separate
grain from the chaff. The contradictions and discrepancies
must be such that they affect the core or substratum of the
prosecution case. The contradictions must be on material
dimensions or else the same cannot be used to jettison the
prosecution evidence in its entirety. After-all, the
discrepancies have to be distinguished from contradictions
while minor discrepancies or variance in prosecution
evidence will not make the prosecution case doubtful. The
above principle of law has been laid down in State of H.P.
vs. Lekh Raj 2000(1) SCC 247.
19. Whether the discrepancy is minor or the same is
Neutral Citation No. ( 2024:HHC:6332 )
fatal for the case is a matter of fact, which is special to each
case.
.
Witnesses of Spot:
20. Adverting to the facts of the instant case, it
would be noticed that PW-1, PW-2 and PW-6 are the spot
witnesses and have been examined to prove the recovery of
the alleged contraband from the conscious possession of
the appellant. r
21. We may, at this stage, observe that much capital
cannot be granted in favour of the appellant for non-
examination of Rajinder Kumar, an independent witness,
whose correct address could not be obtained by the police
for over a year, as such, independent witness could not be
summoned and examined in the Court. However, this fact
in itself belies the claim of the appellant that the so-called
independent witness Rajinder Kumar was a stock witness.
22. Adverting to the testimony of PW-1 SI Jagjeet
Singh, he deposed that he was posted as SI in State
Narcotics and Crime Control, Shimla and on 15.02.2019 at
about 12.30 p.m., he along with SI Layak Ram, HASI Dinesh
Kumar, HHC Balak Ram, HHC Rajesh Kumar and Constable
Gulbadan, Police Post, Sainj, had put a 'naka' about 400
Neutral Citation No. ( 2024:HHC:6332 )
metres ahead of Sainj Bazaar towards Rampur. At about
1.00 p.m., a person, who disclosed his name to be Rajinder
.
Kumar son of Ram Lal, resident of Solan, came on the spot
and stated that he was proceeding from Sainj to Bithal. At
that very time, another person came from Sainj bazaar side,
who was carrying a 'pithu' bag blue and grey colour on his
right shoulder. On seeing the police party, he became
perplexed and started walking hurriedly towards Rampur.
It was on the basis of the suspicion that he was stopped
and, on inquiry, the person disclosed his name as Swaroop
Chand, son of Shri Chandu Ram, resident of Pankhad, P.O.
Ghad, Tehsil Anni, District Kullu, H.P. On the basis of
suspicion, the appellant was asked to give search of his bag,
but he was reluctant to give the search on which it was
suspected that the appellant might be carrying some
objectionable substance in his bag. Rajinder Kumar was
associated as a witness as there were no independent
witnesses available on the spot. Constable Gulbadan was
also associated as a witness. It was in the presence of
witnesses Rajinder Kumar and Constable Gulbadan that the
'pithu' bag of the appellant was opened and it was found
containing a white coloured bag in which black coloured
Neutral Citation No. ( 2024:HHC:6332 )
substance in the shape of ball was recovered. On the basis
of smell and experience, this black coloured substance was
.
found to be 'charas'. The black coloured substance was
also checked with drug detection kit and the substance
was confirmed to be 'charas'. The 'charas' along with carry
bag was weighed with electronic machine which was
available in the I.O. kit and was found to be 1.376 kg and
thereafter the carry bag along with 'charas' was put in the
'pithu' bag in the same manner and the 'pithu' bag was put
in a cloth parcel and sealed with eight seals of seal
impression 'S'. He further deposed that relevant columns of
NCB form Ext. PW-1/B in triplicate were filled on the spot
and the seal impression 'S' was also taken on NCB form.
The case property was taken into possession vide seizure
memo Ext. PW-1/C and Constable Gulbadan and Rajinder
Kumar also put their signatures on Ext. PW-1/C. The
signatures of the appellant were obtained on this document
and the sample seal after use was handed over to
Constable Gulbadan. HHC Rajesh Kumar clicked the
photographs of the spot proceedings with mobile camera of
HASI Dinesh Kumar. Photographs are mark A-1 to A-17.
Thereafter, he prepared rukka Ext. PW-1/D and sent the
Neutral Citation No. ( 2024:HHC:6332 )
same through HHC Rajesh Kumar along with the case
property NCB form, sample seal and copy of recovery memo
.
to Police Station, Kumarsain. After receiving rukka and the
case property, documents, SHO Phool Singh came on the
spot and the case file was handed over to him for further
investigation. The investigation in this case thereafter was
conducted by Inspector Phool Singh.
23. On being cross-examined, PW-1 deposed that
they were doing patrolling and 'naka' duty from the
previous day and had come from Shimla in government
vehicle. He further deposed that they put rapat in this
regard in Police Station, Bharari when they proceeded from
Shimla on previous day, but such rapats were not on the
case file. He also deposed that they had reached near Sainj
at about 9.30 a.m. and had put 'naka' at 12.30 p.m. He
further deposed that they had checked 25 vehicles before
the 'pithu' bag of the appellant was checked. He also
deposed that vehicular traffic was moving frequently from
National Highway and further admitted that there were
12-15 shops at Sainj Bazaar but denied that there were
houses on both sides of the road. He also denied that Sainj
Bazaar was visible from the spot. He stated that they had
Neutral Citation No. ( 2024:HHC:6332 )
not associated independent witnesses. Self-stated that
when they opened the bag and found 'charas' in it, they
.
became busy and did not stop any vehicle. He denied that
Rajinder Kumar was a stock witness and he was driver of
the government vehicle in which they were travelling.
24. PW-2 Constable Gulbadan has corroborated the
prosecution story as well as statement of PW-1 on all
material points.
r Therefore, his examination-in-chief need
not be referred to. On being cross-examined, he stated that
he had joined the narcotics team at about 10.00 a.m. He
denied that there were houses on both sides of the road on
the spot. He deposed that they had checked the vehicles
before noticing the appellant.
25. PW-6 HHC Rajesh Kumar has deposed on similar
lines as that of PW-1 and PW-2 and, in addition, deposed
that he had clicked the photographs Ext. PW-6/A-1 to Ext.
PW-6/A-15 with mobile camera of HASI Dinesh Kumar and
proved the certificate Ext. PW-6/B. Thereafter, he took the
rukka Ext. PW-1/D along with case property NCB form,
sample seal and copy of recovery memo to the police
station where he handed over the same to Inspector Phool
Singh. On being cross-examined, he deposed that they had
Neutral Citation No. ( 2024:HHC:6332 )
checked 20-25 vehicles before apprehending the appellant.
He denied that 2-3 vegetable vendors were sitting on the
.
spot at the relevant time and stated that spot was at a
distance of 300-400 metres from Police Post,Sainj. He
further deposed that they had not stopped any vehicle for
checking after the appellant had been apprehended. He
stated that the I.O. had given his own search to the
witnesses prior to conducting search and stated that they
had no prior information about the appellant and further
deposed that Constable Gulbadan was called from Police
Post, Sainj, who met at the point where they had put 'naka'
at 12.30 p.m.
Link Evidence:
26. PW-3 HC Rajesh Kumar deposed that he was
working as MHC at the relevant time in Police Station,
Kumarsain as regular MHC was on leave. He stated that on
15.02.2019 at about 3.58 p.m., SHO Phool Singh handed
over rukka Ext. PW-1/D to him to register a case and he
entered the FIR Ext. PW-3/A on his direction. He further
deposed that he had issued certificate Ext. PW-3/B under
Section 65B of the Indian Evidence Act. On the same day at
about 4.35 p.m., Inspector/SHO Phool Singh handed over a
Neutral Citation No. ( 2024:HHC:6332 )
cloth parcel sealed with eight seals of seal impression 'S',
three seals of seal impression 'H' along with sample seals of
.
'S' and 'H', NCB form in triplicate, which he deposited in the
'malkhana' vide entry Ext. PW-3/C. On 16.02.2019, the
case property was handed over to SHO Phool Singh along
with sample seals and NCB form in triplicate to be
presented in the Court for proceedings under Section 52A of
the Act. The case property after conducting the said
proceedings was again deposited with him on the same day.
On being cross-examined, he stated that rukka was brought
to the Police Station by HHC Rajesh Kumar.
27. PW-9 HC Vinesh Kumar deposed that on
18.02.2019, he had sent the case property to SFSL, Junga,
through constable Rakesh Kumar as detailed in R.C. Ext.
PW-9/A along with the sample seal, NCB form in triplicate
and photocopy of the inventory, who deposited the same
there on the same day and handed over the receipt to him
on the next day. He further deposed that he had put rapat
No.7 dated 18.02.2019 Ext. PW-9/B and also put rapat
No.16 dated 16.02.2019 Ext. PW-9/C.
28. PW-10 Constable Rakesh Kumar deposed that on
18.02.2019, MHC of Police Station, Kumarsain, handed over
Neutral Citation No. ( 2024:HHC:6332 )
to him the case property containing one cloth parcel sealed
with eight seals of seal impression 'S' and three seals of
.
impression 'H' and three court seals along with NCB form in
triplicate, forwarding letter, inventory certificate as well as
sample seals of 'S', 'H' and that of Court to be deposited in
SFSL, Junga which he deposited there on the same day vide
Ext. PW-9/A and handed over its receipt to MHC on the next
day. r
Witnesses of Special Report:
29. PW-4 HC Sunil Kumar deposed that on
17.02.2019, he had gone to Rohru along with Dy.S.P.,
Rampur for inspection of Police Station, Rohru. On
17.02.2019, HHC Vikas Sood handed over special report Ext.
PW-4/A of this case to SDPO, Rampur, Shri Abhimanyu
Verma, who after perusing the same put his signatures at
point 'A' and handed over the same to him for making an
entry in the relevant register and when he returned back to
Rampur on 20.02.2019, he made the entry in the relevant
register at Sr. No.3, the abstract of which is Ext. PW-4/B.
30. PW-5 HHC Vikas Sood deposed that on
17.02.2019, SHO, Police Station, Kumarsain, had handed
over the special report of this case to him to be handed
Neutral Citation No. ( 2024:HHC:6332 )
over to SDPO, Rampur, who had gone to Rohru for
inspection. He deposed that he had handed over the
.
special report of this case to SDPO at Rohru, who after
perusing the same put his signatures on the special report
and handed over it to his Reader Sunil Kumar for making
entry in the relevant register.
Statements of Second I.O. and other witnesses:
31. PW-11 Inspector Phool Singh, who conducted
part investigation in this case, deposed that on 15.02.2019
at about 3.58 p.m., he received rukka Ext. PW-1/D through
HHC Rajesh Kumar on the basis of which, he registered FIR
Ext. PW-3/A. He deposed that the case property was
produced before him and he resealed the same with three
seals of impression 'H' and issued certificate Ext. PW-11/A
and obtained sample seal on white cloth Ext. PW-11/B.
After resealing, the case property was handed over to MHC
Rajesh Kumar, Police Station, Kumarsain for being deposited
in the 'malkhana'. He also deposed that thereafter he
visited the spot and conducted investigation in this case. SI
Jagjeet of State Narcotics Bureau handed over him the
original recovery memo Ext. PW-1/C, duplicate copy of
rukka Ext. PW-1/B as well as zimini No.1, sample seals and
Neutral Citation No. ( 2024:HHC:6332 )
also handed over the appellant to him vide inventory list
Ext. PW-1/E. He further deposed that he had also prepared
.
the spot map Ext. PW-11/C and recorded the statements of
the witnesses SI Jagjeet, Rajinder Kumar, Constable
Gulbadan and HHC Rajesh Kumar. After interrogation, he
formally arrested the appellant vide memo Ext. PW-11/D.
The case property was produced before the Court vide
rapat Ext. PW-11/E and inventory Ext. PW-11/F was
obtained through application Ext. PW-11/G. Thereafter, he
prepared the special report Ext. PW-4/A and sent the same
to Dy. S.P., Rampur, through HHC Vikas Sood and after
receipt of SFSL report Ext. PX, he prepared the challan and
presented the same in the Court.
32. On being cross-examined, PW-11 stated that
after receipt of rukka, he filled columns No.9,10 and 11 of
NCB form. He deposed that when he reached Sainj at about
5.15 p.m., Constable Gulbadan was there on the spot.
PW-11 further deposed that he recorded the statement of
the witness Rajinder, who disclosed that he was a scrap
dealer. He deposed that FIR number had not been
mentioned on sample seal impression Ext. PW-1/A as well as
Neutral Citation No. ( 2024:HHC:6332 )
inventory list Ext. PW-1/E. He further deposed that
inventory was prepared at the spot by SI Jagjeet Singh.
.
33. PW-7 HHC Gopal Singh proved on record rapat
Ext. PW-7/A which he had entered in the rapat rojnamcha on
15.02.2019.
34. PW-8 Constable Mahaveer Singh deposed that he
had brought the case property along with documents as
well as report of SFSL Ext. PX and handed over the same to
MHC in Police Station, Kumarsain.
35. Adverting to the facts of the instant case, it
would be noticed that all the prosecution witnesses of the
spot i.e. PW-1, PW-2 and PW-6 have in once voice supported
the case of the prosecution as set out in the final report.
36. However, learned counsel for the appellant
would argue that it has come in the statement of PW-2
Constable Gulbadan that he joined narcotic cell at about
10.00 a.m., whereas, PW-6 HHC Rajesh Kumar deposed that
Constable Gulbadan was called from Police Post, Sainj and
he met the police party at about 12.30 p.m. He would
further argue that PW-2 Constable Gulbadan in his cross-
examination specifically stated that he remained with SI
Jagjeet Singh till 4.30 p.m., whereas, PW-11 stated that
Neutral Citation No. ( 2024:HHC:6332 )
when he reached Sainj at about 5.15 p.m., Constable
Gulbadan was present at the spot at that time.
.
37. However, we do not find this contradiction to be
so material so as to even create a serious doubt in the
prosecution case as rightly observed by the learned Special
Judge that the witnesses were not supposed to look into
their watches so as to point out the exact time of the
incident given the fact that the prosecution has been able
to prove that the appellant was apprehended at 1.00 p.m.
as is borne out from the statements of PW-1, PW-2 and PW-6
and at that relevant time Constable Gulbadan was present
on the spot.
38. The learned Special Judge further rightly
observed that since the appellant had been apprehended on
15.02.2019 and the witnesses were deposing after more
than six months of the incidence, there bound to be some
contradictions in their statements as they could not be
expected to give parrot like versions and since such
contradictions do not go to the root of the case, therefore,
they are not of vital importance.
39. It is then vehemently argued by learned counsel
for the appellant that it is the admitted case of the
Neutral Citation No. ( 2024:HHC:6332 )
prosecution itself that the FIR has not been mentioned in
the search and seizure memo and the inventory as well as
.
sample seal which is fatal to the case of the prosecution.
40. However, we find no merit in this contention. In
the seizure memo and all other documents, the FIR number
has specifically been mentioned. That apart, the case
property has been produced before the Magistrate for
preparation of inventory and when the entire bulk was sent
for analysis, the seals were found to be intact. In such
circumstances, non-mentioning of FIR number on some of
the documents cannot be termed to be fatal so as to throw
out the case of the prosecution. As rightly observed by the
learned Special Judge that unless prejudice is caused to the
appellant on account of procedural lapse, every lapse on
the part of the prosecution is not fatal and since no
prejudice has been shown to be caused to the appellant due
to non-mentioning the FIR number on sample seals and
inventory list, even this contention is rejected.
41. Learned counsel for the appellant would then
contend that the rapat that is alleged to have been put in
the rojnamcha of Police Station, Bharari on the basis of
which the police party proceeded from Shimla, has not been
Neutral Citation No. ( 2024:HHC:6332 )
produced on record and the same is fatal to the case of the
prosecution.
.
42. We are again not inclined to accept this
contention as the prosecution is not expected to produce
the diary as a matter of course and if the appellant was
aggrieved, he could have in defence summoned those daily
diaries. In taking this view, we are duly supported by the
judgment of the Hon'ble Supreme Court in Kalpnath Rai
vs. State (through CBI) AIR 1998 SC 201. This view has
also been reiterated in Criminal Appeal No.151/2006,
titled as, Chet Ram vs. State of H.P., decided on
25.07.2008.
43. The learned counsel for the appellant would then
argue that there is no record to indicate what the police
team had been doing from 10.00 a.m. to 1.00 p.m. But, we
find no merit in such contention as the police were under no
obligation to state as to what they were doing during this
time and it was for the appellant to have cross-examined
the witnesses of the prosecution.
44. The learned counsel for the appellant would
argue that the logbook in this case has not been properly
filled up and there are interpolation and over-writing in the
Neutral Citation No. ( 2024:HHC:6332 )
same. Even this contention is without merit as it has been
duly proved on record that PW-1, PW-2 PW-6 along with
.
Rajinder Kumar independent witness were there at the spot
where the appellant had been apprehended with the
contraband and having been given an opportunity to cross-
examine the witnesses and being unable to extract
anything to his advantage, it is too late for the appellant to
raise such contention.
45. Mr. Yashveer Singh Rathore, learned counsel for
the appellant would then argue that there is nothing on
record to indicate that the investigation team was carrying
the I.O. kit with it. However, such contention is liable to be
outrightly rejected as PW-6 has not only deposed about the
weighing scale being there in the I.O. kit but has also placed
on record the photographs wherein the contraband can be
seen being weighed on an electronic scale and
unfortunately the appellant has not chosen to cross-
examine this witness on this material aspect of the case.
46. As a last ditch effort, learned counsel for the
appellant would argue that even though the prosecution has
led evidence to show that a spot map had been prepared by
Neutral Citation No. ( 2024:HHC:6332 )
the Investigating Officer, however, the spot map does not
indicate the exact place where they had put 'naka'.
.
47. We are, however, unable to appreciate the
contention of the appellant as it was for him to have cross-
examined the prosecution witnesses on this aspect of the
case.
48. As rightly observed by learned Special Judge that
as per the statements of PW-1, PW-2, PW-6, PW-9, PW-10
and PW-11, the prosecution has been able to establish that
from the stage of recovery of contraband till the case
property was produced in the Court, the same was not
tampered with in any manner after the recovery of the
contraband from the conscious possession of the appellant.
Whereas, in the statements of PW-4, PW-5 and PW-11, the
prosecution has been able to establish that the special
report in the case was sent to SDPO and entry in this regard
was made in the relevant register at Sr. No.3, the extract of
which is Ext. PW-4/B.
49. In view of the aforesaid discussion and for
the reasons stated here-in-above, we find no merit in this
Neutral Citation No. ( 2024:HHC:6332 )
appeal and the same is dismissed.
.
(Tarlok Singh Chauhan)
Judge
(Sushil Kukreja)
5 August, 2024
th
Judge
(krt)
r to
