Manoj Kumar vs State Of Himachal Pradesh

Sabina, J

Appellant has filed the appeal challenging the judgment/ order dated 20th September, 2018, passed by the Special Judge, Chamba whereby he has been convicted and sentenced as under:

Section 20 (b) (ii) (C) of : Rigorous imprisonment for 10 years and the Narcotic Drugs and to pay a fine of Rs. 1 lac. In default of Psychotropic Substances payment of fine, he shall further undergo Act,1985 simple imprisonment for two years.

Prosecution story in brief is that the police party headed by Head Constable Varinder Singh on 17.12.2015 were on patrol duty towards Koti, Kandla, Gunnu Nullah, Badoh. Police party had laid a Naka about one kilometer above Gunnu Nullah near Kainthli. At about 5.30 p.m., two persons came from Kainthli side towards Gunnu nullah . One of the said persons was carrying a pithu bag on his right shoulder and other was empty handed. On seeing the police party, both the persons turned back and started walking. The said persons were apprehended on the basis of suspicion. Person carrying the bag, on inquiry disclosed his name as Manoj Kumar (appellant). The other person disclosed his name as Inder Singh son of Shri Gian Chand. On the bag carried by the appellant, letters “HIFITM” were written. When the pithu bag was checked, it was found that it contained black substance in a carry bag in the shape of sticks, balls and bundles. The said substance was found to be charas/cannabis. On weighment, the contraband weighed 1.254 Kgs. The recovered contraband was then put in the same carry bag and was made into a sealed cloth parcel with seal bearing impression “T”. NCB form was prepared at the spot and seal after use was handed over to Constable Yog Raj.

Ruqua was sent to the Police Station through Constable Sanjay Kumar for registration of the FIR. Appellant and his co­accused were arrested.

After completion of investigation and necessary formalities, challan was presented against the appellant and his co­accused.

Charge was framed against the appellant and his co­accused under Section 20 (ii) (C ) read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the “ND&PS Act”, for short). Appellant and his co­accused did not plead guilty of the charge framed against them and claimed trial.

In order to prove its case, during trial, prosecution examined 13 witnesses.

After the close of prosecution evidence, appellant when examined under Section 313 of the Code of Criminal Procedure, prayed that he was innocent and had been falsely involved in the case.

Two witnesses were examined in defence by the accused.

Learned Trial Court, vide impugned judgment/order dated 20th September, 2018, ordered the acquittal of the accused Inder Singh of the charge framed against him, whereas, appellant was convicted qua the offence punishable under Section 20 (b) (ii) ( C) of the ND&PS Act and was acquitted of the offence punishable under Section 29 of the ND&PS Act. Hence, the present appeal by the appellant.

Learned counsel for the appellant has submitted that the appellant had been falsely involved in this case. In fact, no recovery had been effected from the appellant. No independent witness had been joined at the time of recovery. There was material discrepancy in the statements of the official recovery witnesses, namely, PW1 Constable Sanjay Kumar, PW2 Constable Yog Raj and PW4 HC Virender Singh. So far as PW1 and PW2 are concerned, they have sated that the recovered substance was in the shape of sticks, whereas, PW2 has stated that the recovered contraband was in the shape of sticks, balls and bundles. As per report of the Forensic Science Laboratory, the contraband was in the form of sticks, balls and bundles. Thus, it cannot be ascertained as to what was the shape of the recovered contraband.

Learned Deputy Advocate General, on the other hand, has opposed the appeal and submitted that the appellant was found in possession of the commercial quantity of the contraband. The entire quantity had been sent to the Forensic Science Laboratory for examination. The discrepancy pointed out by the learned counsel for the appellant could have occurred due to lapse of time.

The present case relates to recovery of 1.254 Kgs. of charas from the bag carried by the appellant. It is a case of chance recovery. Appellant was apprehended merely on the basis of suspicion and when the bag carried by him was checked, it was found that it contained charas.

PW4 Head Constable Virinder Singh while appearing in the witness­box has deposed that the police party had laid a naka about one kilometer above Gunnu Nullah near Kainthli side. At about 5.30 p.m. appellant was apprehendedand from the pithu bag carried by the appellant, charas weighing 1.254 Kgs. was recovered. He had informed the Superintendent of Police who had sent the IO Ashok Kumar to the spot for investigation and he had handed over the case property to ASI Ashok Kumar. He had produced the case property before SI Harnam Singh for re­sealing the same.

PW1 Constable Sanjay Kumar and PW2 Constable Yog Raj have corroborated the statements of PW4 to the effect that 1.254 Kgs. of charas was recovered from the pithu bag carried by the appellant. However, PW1 and PW4, during trial, have stated that the recovered contraband was in the shape of sticks whereas PW2 Constable Yog Raj deposed that the recovered contraband was in the shape of sticks, balls and bundles. The said witnesses also deposed that the case property was sealed with seal bearing impression “T”. PW 13 ASI Ashok Kumar deposed that on 17.12.2015 he was sent by SI/SHO Harnam Singh to Gunnu Nullah, after informing him that the recovery of contraband had been effected there. He reached the spot and Head Constable Virender Singh handed over a parcel to him which was duly sealed with seal bearing impression “T”. PW3 SI Harnam Singh deposed that on 8.12.2015, IO ASI Ashok Kumar produced the case property before him for re­sealing and he had re­sealed the parcel with seal bearing impression “N” and seal after use was handed over to Constable Amit Kumar.

DW1 Om Parkash has deposed that on 17.12.2015, he was at home and Gunnu Nullah was at a distance of about 100 meters from his house. He had not seen any police official in and around his village. DW2 Lekh Raj deposed that he was running a mechanic shop at village Sapdah and his shop as well as his house were contiguous to Chamba­Tissa road. His shop was on the upper floor, whereas, his residence was on the ground floor. On the night intervening 17/18.12.2015 he had remained at home and no police official had come to his shop.

So far as the statements of DW1 and DW2 are concerned, the same fail to rebut the testimonies of the official witnesses with regard to recovery of the contraband from the bag carried by the appellant. Merely because DW1 had not seen any police official in his village or because no police official had visited the shop of DW2, is no ground to disbelieve the testimonies of the official witnesses. The police officials have withstood the test of cross­examination with regard to their version that the recovery of the contraband was effected from the bag carried by the appellant. Hence, the statements of DW1 and DW2 fail to advance the case of the appellant.

Ext. PW1/B is the recovery memo and as per the same, recovered contraband was in the shape of sticks, balls and bundles. As per the NCB form, Ext.PW3/F, the recovered contraband was in the shape of sticks, balls, and bundles.

As per report of the Forensic Science Laboratory Ext.PX, the recovered contraband was in the shape of sticks, balls and bundles and weighed 1.254 Kgs. After examination, it was opined that exhibit was extract of cannabis and sample of charas. A perusal of the said report also reveals that the parcel was duly sealed with five seals of seal bearing impression “T” and re­sealed with five seals of seal bearing impression “N” at the time of its receipt in the Laboratory.

Thus, the contraband that reached the laboratory was in a duly sealed state. Although, PW1 and PW4 have only stated to the effect that the contraband was in the shape of sticks but the other evidence on record leads to the conclusion that the recovered contraband was in the shape of sticks, balls and bundles. Hence, the discrepancy pointed out by the learned counsel for the appellant with regard to the shape of the recovered contraband by the official witnesses, cannot be said to be fatal to the prosecution case as from the evidence on record, it duly stands established that the contraband recovered from the pithu bag carried by the appellant was in the shape of sticks, balls and bundles and it had reached the Forensic Science Laboratory in a duly sealed condition.

Although in the present case, no independent witness has been joined at the time of recovery of the contraband but the said fact in itself cannot be said to be fatal to the prosecution case. The fact that no independent witness has been joined, casts a duty on this Court to examine the testimonies of the official witnesses with greater care. In case, the testimonies of the police officials are found to be reliable, then they can form the basis of conviction. We have carefully gone through the statements of the official witnesses and there is nothing on record to discredit their version. In the facts and circumstances of the case, we are of the opinion that the non­ association of independent witnesses will not help the case of the appellant. In the present case, link evidence as well as testimonies of the recovery witnesses duly establish the prosecution case with regard to recovery of the contraband from the bag carried by the appellant.

Since in the present case, prosecution had been successful in establishing its case with regard to recovery of the contraband from the bag carried by the appellant, we are of the opinion that the learned Trial Court had rightly ordered conviction and sentence of the appellant vide impugned judgment/order dated 20th September, 2018. No ground for interference by this Court is made out.

Dismissed.