Pushap Raj vs State of Himachal Pradesh

Piar Singh Rana, J.—Present appeal filed against the judgment and sentence passed by learned Additional Sessions Judge Mandi in Sessions Trial No. 28 of 2007 titled State vs. Pushap Raj decided on 25th September, 2008.

Brief facts of the case as alleged by the prosecution:-

It is alleged that on dated 27th May, 2007 H.C. Dina Nath C. Sanjay Kumar C. Bhupender Singh and C. Bansi Lal of police Station Aut were on excise patrol duty. It is alleged that when the police officials were in between Tunnel and Largi Dam bridge they saw accused coming on the road carrying a bag and when he saw the police officials he tried to run away but he was caught by the police party. It is alleged by prosecution that bag was checked and on checking it was found containing one polythene bag kept in jacket in the bag and in polythene bag 3.750 grams charas was found. It is further alleged that charas was separated into two samples of 25 grams each out of the recovered charas and the same were put into two separate cigarette packets and these packets were packed in separate cloth which was sealed with seal impression ''H''. It is also alleged that remaining bulk of the charas was put in the same polythene bag and the bag was sealed in a cloth parcel with seal having seal impression ''H''. It is further alleged by prosecution that NCB form in triplicate was filled in and seal impression also took on a piece of cloth Ext. PW2/C and thereafter seal was handed over to C. Bansi Lal. It is alleged by prosecution that police took into possession sealed vide memo Ext. PW2/A. It is also alleged by prosecution that thereafter ruka Ext. PW9/A was sent through C. Bhupender Singh for registration of FIR and thereafter FIR was registered and spot map Ext. PW3/E was prepared. It is further alleged that thereafter the case property took to the police station Aut and same was deposited. It is also alleged that sample charas along with specimen seal impressions ''H'' and ''T'' NCB form search and seizure memo copy of FIR and docket were sent to FSL Junga through C. Bhup Singh vide RC No. 79/2007. It is further alleged by prosecution that same were deposited with FSL Junga and application Ext. PW3/H was filed before the Judicial Magistrate 1st Class Court No. III Mandi for compliance of provisions of Section 52-A of the Narcotic Drugs and Psychotropic Substances Act (Hereinafter referred to as ''the Act''). It is alleged that on dated 4th August, 2007 SI/SHO Mangat Ram produced the case property with two sealed parcels along with Register No. 19 of the Malkhana before the Judicial Magistrate 1st Class, Court No. III Mandi. It is further alleged by prosecution that JMIC Mandi opened both parcels containing samples of charas. It is alleged by prosecution that Judicial Magistrate 1st Class Mandi also weighed the contraband and charas was found homogeneous. It is also alleged by prosecution that Judicial Magistrate 1st Class passed the order Ext. PW3/M u/s 52(A) of the Act and as per the chemical report Ext. PX the sample was of charas. Accused took the defence that on the fateful day he was returning from Paldi where he was working as labourer in the slate mines and he came in a bus up to Thalout tunnel where he alighted from the bus and came in Bawa Bus Service up to Hanogi temple. The bus was stopped at Hanogi temple where passengers alighted from the bus in order to offer prayer in the temple and he also came out of the bus and also offered prayer in the temple and he was taken by the police forcibly from Hanogi temple to Police Station Aut. He had moved application in the Court and also made complaint to S.P. Mandi that he was falsely implicated in the case. Devinder Nath was also travelling in Bawa Bus Service who also alighted at Hanogi Mata temple to offer prayer in the temple. He was working as labourer with Thakur Dass of Paldi in the slate mine. He has stated that he has been falsely implicated in present case.

Learned trial Court framed the charge against the accused on 31st October, 2007. He pleaded not guilty and claimed trial.

Prosecution examined as many as nine witnesses in support of its case and accused examined six witnesses in defence:-

4.1 Prosecution also produced following piece of documentary evidence in support of its case:-

Statement of the accused was also recorded u/s 313 Cr.P.C. Learned trial Court convicted the accused u/s 20 of the Act and sentenced him to undergo rigorous imprisonment for ten years and fine to the tune of Rs. 1,00,000/-(Rupees one lac only). Learned trial Court further directed that in default of payment of fine convict would undergo rigorous imprisonment for two years. Feeling aggrieved by judgment and sentence passed by learned trial Court appellant filed present appeal on the following memorandum of grounds of appeal.

Grounds of appeal

It is pleaded that impugned judgment and sentence passed by learned trial Court are contrary to law and contrary to the proved facts. It is pleaded that in present case no independent witness has been associated by the police and sample sent for chemical analysis was not made homogenous and sample drawn before the learned Judicial Magistrate 1st Class Court No. III Mandi was not sent for chemical analysis. It is pleaded that learned trial Court did not properly appreciate the defence evidence adduced by the accused and case of prosecution is full of suspicion. Prayer for acceptance of appeal sought.

We have heard learned counsel appearing on behalf of the appellant and learned Additional Advocate General at length and also perused the entire record carefully.

Question that arises for determination before us in this appeal is whether learned trial Court on the basis of material on record was justified in convicting the appellant.

Oral Evidence Adduced by Prosecution:

8.1. PW1 Dalip Kumar has stated that he is running sweet shop at village Aut for the last 5/6 years. On 27th May, 2007 police constable Bhupender Singh came to his shop and took his table scale and weights of 2Kg, 1Kg, 500 grams, 100 grams and 50 grams. He has stated that thereafter C. Bhupender Singh returned his scale and weights after our hour. He has denied suggestion that no weights and scale were taken from his shop by C. Bhupender Singh. He has stated that police officials are his customers.

8.2 PW2 Bansi Lal has stated that he is posted as constable general duty at P.S. Aut since 2007. On 27th May, 2007 he along with H.C. Dina Nath, C. Bhupinder Singh, C. Sanjay Kumar was on patrol duty at traffic tunnel towards Largi Dam and at about 4 PM when they reached near Largi Dam bridge, they saw that accused was coming on foot on Dam bridge and when he saw police officials he got perplexed and returned back. He has stated that H.C. Dina Nath with the help of police party overpowered the accused and on inquiry by H.C. Dina Nath accused disclosed his name as Pushap Raj and also disclosed his address and he identified the accused in Court. He has stated that they tried to associate the independent witness but none was available to be associated as independent witness. He has stated that thereafter H.C. Dina Nath checked the bag of accused and on checking the bag, it was found containing a polythene bag and on checking the polythene bag it was found containing charas in the shape of sticks. He has further stated that thereafter C. Bhupender Singh was sent to bring weights and scales from Aut bazaar and he had brought the same from the shop of Dalip Kumar. He has further stated that on weighment the charas was found 3 Kg 750 grams. He has stated that HC Dina Nath separated two samples of 25 grams each and samples were packed with seal and remaining charas was also packed in parcel with seal impression ''H''. He has stated that NCB form in triplicate was prepared. He has denied suggestion that accused was not apprehended with charas at Larji Dam. He has denied suggestion that they were not at the Dam site Largi. He has stated that he does not know that accused was travelling in private bus having registration No. HP-65-0317. He has denied suggestion that bag was taken by the police officials from the shelf of the bus. He has denied suggestion that false case has been fabricated against the accused and also denied suggestion that entire proceedings took place in police station.

8.3 PW3 H.C. Mangat Ram has stated that in the year 2007 he was posted as SI/SHO P.S. Aut. He has stated that on 27th May, 2007 one ruka Mark A was received through C. Bhupinder Singh on the basis of which FIR Ext. PW3/A was registered which was signed by him. He has stated that thereafter he took the file to the spot where he met police party headed by HC Dina Nath. He has further stated that HC Dina Nath handed over to him at the spot three sealed parcels sealed with seal impression ''H'' NCB form in triplicate specimen seal impression ''H''. He has stated that thereafter he resealed the three parcels with his own seal having impression ''T'' and he also taken specimen seal impression ''T'' on pieces of cloth. He has also stated that then after inspecting the spot he prepared spot map Ext. PW3/E and recorded the statements u/s 161 Cr.P.C. and thereafter he arrested the accused vide memo Ext. PW3/F. He has stated that intimation about arrest of accused was given to his relative and he has stated that thereafter he took the case property at police station and deposited the same along with specimen impressions NCB form with MHC of Police Station. He has also stated that he was directed to send sample charas along with relevant documents to Chemical Examiner and on 28.5.2007 he prepared special report and sent the same through C. Bhup Singh to Additional S.P. Mandi. Thereafter he moved application Ext. PW3/H to Judicial Magistrate 1st Class, Court No. III, Mandi u/s 52(A) of the Act. He has stated that he also prepared the inventory list Ext. PW3/J and also took photographs Ext. PW3/K-1 to Ext. PW3/K-9 and negatives of photographs are Ext. PW3/K-10 to Ext. PW3/K-18. He has stated that learned Judicial Magistrate opened the parcel and weighed the charas in Court. He has stated that photographs took place when the charas was wrapped in Court. He has stated that thereafter learned Judicial Magistrate 1st Class sealed the parcel with seal having impression JMIC III. He has stated that Judicial Magistrate also took the specimen seal impressions Ext. PW3/L-1 and Ext. PW3/L-2 on pieces of cloth which were also signed by learned Judicial Magistrate 1st Class after affixing seal of the Court. He has stated that learned Judicial Magistrate 1st Class handed over the seal to Devender Kumar Naib Nazir and prepared certificate about the proceedings and the case property. He has stated that JMIC recorded proceeding which is Ext. PW3/M and certificate issued by learned JMIC is Ext. PW3/N. He has stated that application filed before learned JMIC u/s 52(A) is Ext. PW3/J and inventory attached with application is Ext. PW3/J-1. He has stated that he also attached the copy of FIR with the application and also attached the copy of recovery memo search and seizure form. He has stated that he deposited the case property with MHC in P.S. Aut. He has stated that after completion of investigation, he filed the challan in Court. He has denied suggestion that case property was not handed over to him. He has denied suggestion that papers were prepared in police station. He also denied suggestion that accused has been falsely implicated in present case.

8.4 PW4 Naresh Kumar has stated that he remained posted as Judicial Magistrate 1st Class Court No. III w.e.f. 17th April, 2007 to 23rd April, 2008. On 11th June, 2006 SHO of P.S. Aut moved application Ext. PW3/H-1 before him along with inventory of Ext. PW3/J-1. He has stated that SHO Mangat Ram produced one big parcel containing 3.700 grams charas along with one small parcel stated to be containing 25 grams each sample charas and also produced register No. 19. He has stated that SI Mangat Ram also produced two pieces of cloth containing impressions ''T'' and ''H''. He has stated that first small parcel sealed with seal ''T'' was opened and on opening the same one another parcel containing four seals ''H'' was found in the same. He has stated that seals were found intact. He has stated that both the parcels were mixed and after proper mixing representative sample was taken up and thereafter the same were resealed with seal ''Judicial Magistrate 1st Class, Mandi''. He has stated that remaining charas was kept in same polythene bag and was wrapped with seal ''T''. He has stated that specimen of seal impression was taken on a piece of cloth and photographs of entire proceedings were also taken in his presence. He has stated that seal after use was handed over to Naib Nazir Devender Kumar of the Court. He has stated that photographs Ext. PW3/K-1 to Ext. PW3/K-9 were obtained in his presence. He has denied suggestion that no case property was produced in his presence. He has also denied suggestion that samples were not sealed in Court.

8.5 PW5 Bhup Singh has stated that he is posted as Constable General duty. He has stated that on dated 28th May, 2007 Additional SHO Mangat Ram gave him an envelope stated to be containing Special Report which he had taken to the office of Additional S.P. Mandi and handed over the same. He has stated that on 4th June, 2007 MHC Parkash Chand handed over to him one sealed parcel sealed with seals ''H'' and ''T'' along with seal sample ''H'' and ''T'' NCB form and other documents along with docket vide RC No. 79/2007 to FSL Junga and deposited the same on the same day. He has stated that after returning, he handed over the receipt to MHC P.S. Aut and case property remained intact in his custody. He has denied suggestion that no sample and special report were handed over to him and he has denied suggestion that he is deposing falsely.

8.6 PW6 HC Parkash Chand has stated that he is posted as MHC at P.S. Aut. He has stated that on 27th May, 2007 SI Mangat Ram deposited one parcel containing 3.700 grams charas which was resealed with seal impression ''T''. He has stated that two samples of 25 grams each along with sample seals ''H'' and ''T'' NCB form in triplicate which was entered in register No. 19 were deposited with him. He has stated that on 4th June, 2007 he sent sample of case property i.e. sample which was sealed with seal ''T'' along with seals ''H'' and ''T'' and NCB form copies of search and seizure form and copy of FIR along with docket vide R.C. No. 79/2007 through C. Bhup Singh to FSL Junga who after depositing the same handed over the receipt to him. He has stated that case property remained intact in his custody. He has denied suggestion that case property was not deposited with him and he has also denied suggestion that case property was not sent for chemical examination.

8.7 PW7 HC Ramesh Chand has stated that in the year 2007 he was Assistant Reader to S.P. Mandi. He has stated that on 29th May, 2007 Additional S.P. Rajesh Dhirmani of District Mandi handed over to him the special report. He has stated that special report was entered at Sr. No. 19 in the register and Additional S.P. also signed the special report Ext. PW7/A. He has denied suggestion that special report Ext. PW7/A was not handed over to him by Additional S.P.

8.8 PW8 C. Bhupender Singh has stated that he remained posted at police station Aut from 2005 to September, 2007. He has stated that on 27.5.2007 he along with HC Dina Nath C. Sanjay Kumar and C. Bansi Lal were on excise patrol duty towards Larji Dam. He has stated that at 4 PM after crossing traffic tunnel when they were going on foot towards Larji Dam they saw the accused coming on the road who tried to run away when he saw the police officials. He has stated that accused was intercepted and he disclosed his name. He has further stated that accused was carrying a blue colour bag which was recovered from the accused and on checking of the bag, it was found containing charas measuring 3.750 grams. He has stated that he also signed the recovery memo seizure memo and accused also signed the same. He has stated that copy of recovery memo was handed over to accused Pushap Raj. He has stated that thereafter ruka was sent. He has stated that charas was recovered in the shape of sticks. He has denied suggestion that bus No. HP-65-0317 came at Hanogi Mata temple from Kullu to Sundernagar. He has denied suggestion that bus was stopped near Hanogi temple and the passengers came out of the bus. He has denied suggestion that thereafter police officials went inside the bus. He has also denied suggestion that one unclaimed bag was recovered from the bus which was kept on the rack of the bus. He has denied suggestion that driver of bus was Pushap Raj and conductor of bus was Pardeep Kumar. He has denied suggestion that accused was picked up from Hanogi temple forcibly. He has denied suggestion that driver and conductor of the bus told that accused boarded the bus from bus stand tunnel. He has denied suggestion that false case has been fabricated against the accused.

8.9 PW9 Dina Nath has stated that he is posted as HC/IO at Police Station Aut since January 2007. On 27th June, 2007 he along with C. Sanjay Kumar C. Bhupender Singh and C. Bansi Lal were on excise patrol duty towards Larji Dam. He has stated that at about 4 PM they were on the road in between traffic tunnel and Largi Dam bridge and they saw the accused coming on the road who was carrying a bag with him. He has stated that on seeing them, the accused tried to run away but he was caught by them. He has stated that on inquiry the accused disclosed his name and address and he identified the accused person in Court. He has stated that accused revealed his name as Pushap Raj and stated that he tried to associate independent witness but independent witnesses were not available. He has stated that bag of the accused was searched and on search charas in shape of sticks was found. He has stated that on weighment, charas measuring 3.750 grams was found. He has stated that two samples of 20 grams each were taken and sealed with seal impression ''H'' in cloth parcel and remaining charas was also sealed with seal impression ''H''. He has stated that thereafter he filled NCB form in triplicate. He has stated that witnesses and accused signed the parcel. He also denied suggestion that no personal search of the accused was conducted. He has denied suggestion that unclaimed bag was recovered from the rack of the bus and also denied that Pushap Raj and Pardeep Kumar were driver and conductor of the bus. He has denied suggestion that accused was apprehended in front of the temple. He has denied suggestion that false case has been filed against the accused and all papers and spot map were prepared in police station. He has stated that he did not record the statement of Devender. He has denied suggestion that false case filed against the accused.

Defence evidence adduced by the accused/appellant

9.1. DW1 Thakur Dass has stated that he is having a stone slate mine in village Nalasari Fatti Seholi and Thati Beer Tehsil Banjar. Accused Pushap Raj is personally known to him and Om Chand is father of accused Pushap Raj. He has stated that in the month of May, 2007 accused Pushap Raj and his father Om Chand were working as labourers in his slate mine. He has further stated that on 27th May, 2007 Pushap Raj came from the slate mine to his native village at 10 AM. He has stated that accused was to catch bus from Fagu Pullah which is 15 Km. from the slate mine and he paid Rs. 1000/- (Rupees one thousand only). He has stated that father of accused remained at the slate mine. He has stated that when accused left the place of slate mine he was not having any bag. He denied suggestion that accused and his father were not working as labourers with him. He has denied suggestion that he did not give Rs. 1000/- (Rupees one thousand only) to accused on 27th May, 2007. He denied suggestion that accused did not come from the slate mine to his native village. He has stated that he does not know when the accused was apprehended with 3.750 grams charas near Largi dam near tunnel. He has denied suggestion that in order to save the accused from criminal liability he is deposing falsely.

9.2 DW2 C. Chaman Lal has stated that he has brought the summoned record of P.C./misc./07/562 dated 1.6.2007 Ext. PW2/A copy of complaint dated 31st May, 2007 addressed to S.P. Mandi. He has stated that on the basis of complaint Ext. DW2/A inquiry was conducted and complaint was found false.

9.3 DW3 Om Chand has stated that Pushap Raj accused is his son. He has stated that in the month of May, 2007 he and his son were in the slate mine of Paldi area of Tehsil Banjar. He has stated that in the month of May on Sunday accused came from slate mine at 10 AM to his native village. He has stated that he came on foot up to Fagu Pullah and Thakur Dass had paid Rs. 1000/- to him. He has stated that someone informed him that accused was arrested and further stated that Pushap Raj was not having any bag when he left the slate mine. He has stated that Devinder Nath told him that Pushap Raj accused was not having any bag with him. He has stated that thereafter he came from Aut to Mandi and filed complaint to S.P. Mandi. He denied suggestion that he and his son were not working as labourers in the month of May, 2007. He has denied suggestion that accused was caught by police possessing 3 Kg 750 grams charas near traffic tunnel Largi Dam. He has denied suggestion that being father of accused he is making false statement to save him from criminal liability.

9.4 DW4 Devinder Nath has stated that he is driver by profession and accused Pushap Raj was from his village. He has stated that on 27th May, 2007 he was coming from Bhunter in private bus Bawa Coach No. HP-65-0317 upto Pandoh and said bus reached at Largi Traffic tunnel bus stop at 2.45 PM or 3 PM. He has stated that 3-4 persons including the accused boarded the bus at bus stop traffic tunnel Largi. He has further stated that bus was stopped at Hanogi Mata temple. He has also stated that accused Pushap Raj was not having any bag with him. He has further stated that when he and Pushap Raj were offering prayer in the temple in the meantime police also came there who were already at Hanogi temple and they took the accused with them. He has stated that he along with father of accused went to meet accused Pushap Raj at police station. He has stated that accused has been falsely implicated in present case. He has denied suggestion that he did not travel in the Bawa coach on 27th May, 2007 and he also denied suggestion that Pushap Raj did not board the bus from traffic tunnel Largi. He has denied suggestion that police officials did not bring the bag from inside the bus. He has denied suggestion that being neighbourer of accused he is deposing falsely to save the accused from his criminal liability.

9.5 DW5 Hari Singh I.O. P.S. Aut has stated that he has brought the summoned record i.e. daily diary and Malkhana register Ext. DW5/A which is true as per the original register.

9.6 DW6 Pardeep Kumar has stated that in the month of May, 2007 he was working as conductor in bus No. HP-65-0367 which is under name and style of Baba bus service and plied from Kullu to Sundernagar via Mandi. He has stated that accused boarded the bus on 27.5.2007 from tunnel Largi bus stop at about 3 PM. He has stated that accused boarded the bus up to Pandoh. He has stated that when bus reached at Hanogi temple at 3.20 or 3.30 PM there were 20 passengers in the bus. He has stated that bus was stopped at Hanogi temple and passengers went to the temple. He has stated that police officials came and searched the bus at Hanogi temple and the police took Pushap Raj out of the bus. He has further stated that there was one bag in the shelf which was also taken by the police and the accused also alighted from the bus to take Parshad in the temple. He has stated that next day there was news item published in the news paper that charas was recovered from possession of accused. He has stated that when the accused boarded the bus at Largi tunnel he was not having any bag with him. He has stated that police did not disclose to the passengers that some objectionable material recovered from the bus. He has stated that he did not bring any record to show that he was working as conductor in the bus. He denied suggestion that accused did not board the bus from bus stand traffic tunnel Largi. He also denied suggestion that accused was apprehended with charas near traffic tunnel Largi. He has denied suggestion that he is deposing falsely in order to save the accused.

Submission of learned Advocate appearing on behalf of the appellant that no independent witness was associated by prosecution in present case and on this ground appeal be accepted is rejected being devoid of any force for the reasons hereinafter mentioned. PW2 Bansi Lal eye witness of the incident has stated in positive manner when he appeared in the witness box that no independent witness was available. Even PW9 Dina Nath has stated in positive manner that police tried to associate independent witness but no independent witnesses were available in present case. The testimonies of PW2 and PW9 that despite effort independent witness could not be made available are trustworthy reliable and inspire confidence of the Court. There is no reason to disbelieve the testimonies of PW2 Bansi Lal and PW9 Dina Nath. There is no evidence on record to prove that PW2 Bansi Lal and PW9 Dina Nath have hostile animus against the accused at any point of time.

Another submission of learned Advocate appearing on behalf of the appellant that sample was not made homogenous is also rejected being devoid of any force for the reasons aforesaid mentioned. It is proved on record that charas was recovered from the conscious and exclusive possession of the accused in the form of sticks and it is also proved on record that two samples obtained containing 25 grams each and it is also proved on record that thereafter samples of charas and bulk of charas were produced before the Judicial Magistrate 1st Class, Court No. III, Mandi. It is proved on record that as per testimony of PW4 Judicial Magistrate 1st Class, Court No. III, Mandi both parcels and samples of charas were produced before him. It is also proved on record that learned Judicial Magistrate 1st Class mixed the parcels and made a representative sample. Testimony of PW4 Judicial Magistrate 1st Class, Mandi is trustworthy, reliable and inspires confidence of the Court. There is no reason to disbelieve the testimony of PW4 Naresh Kumar Judicial Magistrate 1st Class Court No. III Mandi.

Another submission of learned Advocate appearing on behalf of the appellant that sample drawn and sealed before the Judicial Magistrate was not sent for chemical analysis is also rejected being devoid of any force for the reasons hereinafter mentioned because there is no evidence on record that some other sample was sent to the office of Chemical Examiner for examination. It is the case of prosecution that entire charas was in shape of sticks. It is not the case of prosecution that charas was recovered in two different shapes i.e. sticks and balls.

Another submission of learned Advocate appearing on behalf of the appellant that entire case of prosecution is based on statements of interested witnesses and on this ground appeal be accepted is also rejected being devoid of any force for the reasons hereinafter mentioned. It was held in case reported in Nathusingh Vs. The State of Madhya Pradesh, that mere fact that the witnesses examined in support of the prosecution case were the police officials was not strong enough to discard their evidence. It was held in case reported in State of Gujarat Vs. Raghunath Vamanrao Baxi, that in appreciating oral evidence in criminal cases the question in each case is whether the witness is a truthful witness and whether there is anything to doubt his veracity in any particular matter about which he deposes. Where the official witness is found to be truthful on material facts that is end of the matter. Where the official witness found to be partly truthful the Court may take the precaution of seeking some corroborative evidence but a Court is not entitled to reject the evidence of a witness merely because they are government servants who in the course of their duties or even otherwise might have come into contact with investigating officers and who might have been requested to assist the investigating agencies. For that matter it would be wrong to reject the evidence of police officers either on the mere ground that they are interested in the success of the prosecution. It was held that it is extremely unfair to a witness to reject his evidence by merely giving him a label.

Another submission of learned Advocate appearing on behalf of the appellant that testimony of police witness is not sufficient to convict the accused in present case is also rejected being devoid of any force for the reasons hereinafter mentioned. In present case testimonies of eye witnesses namely PW2 Bansi Lal, PW9 Dina Nath and PW8 C. Bhupender Singh are trustworthy, reliable and inspire confidence of the Court. Testimonies of above stated persons is corroborated by link evidence i.e. testimony of PW1 Dalip Kumar who has stated in positive manner that he handed over the scale and weights and is also corroborated by testimony of PW3 SI Mangat Ram who has stated that three sealed parcels NCB form and seal impressions were resealed by him and is also corroborated by PW4 Naresh Kumar Judicial Magistrate 1st Class who has stated that sample parcels were produced before him and he made it homogenous and he also took photographs. Testimony of eye witness is corroborated by PW5 Bhup Singh who has stated that special report was handed over to Additional S.P. Mandi by him and testimony of eye witness is also supported with link evidence i.e. PW6 Parkash Chand that parcels were deposited in the malkhana and thereafter he sent the same for chemical examination. The testimony of eye witness is also corroborated by PW7 Ramesh Chand who has stated that special report was received in office. The testimony of eye witnesses is also corroborated by documentary evidence i.e. search and seizure memo Ext. PW2/A and Ext. PW2/B seal impressions obtained on piece of cloth Ext. PW2/C and NCB form Ext. PW3/C placed on record site plan Ext. PW3/E placed on record application Ext. PW3/H filed u/s 52(A) of the Act before the Judicial Magistrate 1st Class, Court No. III Mandi and report of JMIC Mandi Ext. PW3/M dated 4th August 2007 placed on record and extract of malkhana register Ext. PW5/A and special report Ext. PW7/A placed on record and corroborated by photographs Ext. PW3/K-1 to Ext. PW3/K-9 and negatives Ext. PW3/K-10 to Ext. PW3/K-18 and is also corroborated by chemical analyst report submitted by FSL Junga Ext. PX. As per report of State Forensic Science Laboratory, Junga various scientific tests such as identification, chemical and chromatographic were carried out in the laboratory vide Ext. P/1 and the tests performed above indicated cannabinols including the presence of tetrahydrocannabinol in the sample. The resin were found to be 34.06% W/W in Ext. P/1 and as per the opinion of Forensic Science Laboratory the exhibit marked as P/1 is the sample of Charas.

Submission of learned Advocate appearing on behalf of the appellant that in view of testimony of DW1 Thakur Dass accused be acquitted is also rejected being devoid of any force for the reasons hereinafter mentioned. We have carefully perused the testimony of DW1 Thakur Dass and found that he was not present at the time of recovery of charas and he was employer of accused and he is interested witness and is not independent witness and his testimony is not sufficient to acquit the accused in present case. Even testimony of DW2 C. Chaman Lal is not helpful to the appellant because it is proved on record that complaint Ext. DW2/A was filed by Om Chand father of the appellant before the Superintendent of Police and inquiry was conducted and DW2 has stated in positive manner that on the basis of inquiry the complaint was found to be false. Even it is proved on record that complaint was filed before the Special Judge, Sessions Division, Mandi and on dated 4th October 2007 the learned Advocate appearing on behalf of the complainant has stated before the Special judge Mandi that complainant has no grouse and the same was dropped by learned Special Judge Mandi on 4th October 2007. Certified copy of order of learned Special Judge Mandi dated 4th October 2007 placed on record.

16 Even testimony of DW3 Om Chand father of appellant is not helpful to the appellant because DW3 Om Chand is father of the appellant and he is interested witness and is not independent witness and even complaint filed by DW3 Shri Om Chand was found false after appropriate investigation and even Om Chand through his Advocate has withdrawn the complaint filed before the Special judge, Sessions Division, Mandi on dated 04-10-2007.

Even testimony of DW4 Devinder Kumar is not helpful to the appellant because Devender Kumar did not produce any ticket in order to prove that he was travelling in the bus along with the appellant. He has stated in positive manner that he had purchased the passenger ticket but the same was destroyed and it is proved on record that even DW4 Devinder Kumar is also interested witness because he also went to the office of S.P. along with Om Chand father of complainant when the complaint was filed before Superintendent of Police. He has stated that he did not sign the complaint. Above stated facts clearly prove that DW4 Devinder Kumar is interested witness being neighbourer of accused and his testimony is not sufficient to disbelieve the evidence of prosecution witnesses. We also hold that even testimony of DW5 Hari Singh is not helpful to the appellant because he has stated in positive manner that entry was made subsequently in the original register at Sr. No. 342 of the malkhana when the case property was received from the Court. In present case it is proved on record that case property was presented before learned Judicial Magistrate 1st Class, Court No. III, Mandi and order was obtained from the Judicial Magistrate u/s 52(A) of the Act. We also hold that even testimony of DW6 is not helpful to the appellant because he did not place on record the duty chart in order to prove that he was working as conductor in bus No. HP-65-0367. Owner of bus No. HP-65-0367 was not examined in order to prove that he had employed DW6 Pardeep Kumar as conductor. In present case, accused did not examine the employer in order to prove that Pardeep Kumar was employed as conductor in private bus by the owner of bus.

In view of above stated facts, we hold that learned trial Court has correctly and properly appreciated the oral as well as documentary evidence placed on record. We also hold that no miscarriage of justice has been caused to the appellant in present case. We also hold that judgment and sentence passed by learned trial Court are not perverse but are in accordance with law and on proved facts. Hence we affirm the judgment and sentence passed by learned trial Court. Appeal filed by the appellant is dismissed being devoid of any force. All pending miscellaneous application(s), if any, also stands disposed of.