Suraj Bhan vs State of Himachal Pradesh

By way of this appeal, the appellant/accused has challenged the judgment passed by the Court of learned Special Judge-III, Solan, District Solan in Sessions Trial No. 15 ASJ-II/7 of 2015 dated 25.04.2016, vide which the present appellant has been convicted by the learned trial Court for commission of offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substance Act, 1985 and has been sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs.One lac and in case of default of payment of fine, to further undergo simple imprisonment for one year.

The case of the prosecution was that on 11.02.2015, a police party comprising of HC Ambi Lal, HC Om Parkash, LHC Virender Kumar, Constable Amit Kumar and Constable Vinod Kumar proceeded towards Chambaghat, Salogra and Kandaghat area in connection with patrol duty and at about 6:20 p.m., the said police party headed by HC Ambi Lal was present at Chambaghat traffic check post when a Punjab Roadways Bus bearing registration No. PB-10DM-8068 came from Shimla side on its way to Ludhiana, which was intercepted by the said police party. Further as per the prosecution, HC Ambi Lal and LHC Virender Kumar entered the said bus from the front door and they started checking luggages of passengers. When HC Ambi Lal reached near seats No. 19, 20 and 21, he found two persons sitting on seat No. 19 and 20 and seat No. 21 was vacant. The person who was occupying seat No. 20 was holding a pithoo bag black in colour on his lap and when this bag was opened, from inside it a shawl and a micron bag were recovered. From inside the said micron bag a transparent plastic packet duly wrapped was recovered. Before this plastic bag was opened, passenger sitting on seat No. 21, PW-7 Balwinder Singh and PW-8 Sandeep Kumar, conductor of the bus were associated in the investigation by the Investigating Officer alongwith LHC Virender Kumar (PW-6). In the presence of these persons, plastic packet was opened and from inside the same, black coloured substance in the form of balls was recovered, which after smelling on experience was found to be cannabis. Accused when asked disclosed his name as Suraj Bhan. The cannabis so recovered from the accused was weighed with the help of electronic scale and the same was found to be weighing 1.200 Kgs. Thereafter, cannabis was put in the same transparent plastic packet, which was placed in the same micron bag and sealed with four seal impression of ''M''. Recovery memo Ex. PW6/B was prepared in the presence of Balwinder Singh and Sandeep Kumar and sample of seal was taken on a white piece of cloth Ex. PW6/A. Relevant columns of NCB form Ex. PW11/C were filled in triplicate and sample of seal ''M'' was also embossed on it. Said seal after its use was handed over to PW-7 Balwinder Singh. Pullinda containing cannabis, pithoo bag alongwith shawl and bus ticket Ex. P-4 were taken into possession vide memo Ex. PW6/B. PW-6 to PW-8 appended their signatures on said memo as witnesses and the same was also signed by accused Suraj Bhan. HC Ambi Lal also photographed the proceedings and a CD of the proceedings was also prepared vide Ex. PW6/C. Ruqqa Ex. PW12/A was prepared at the spot and sent through LHC Virender Kumar to Police Station, on the basis of which FIR Ex. PW4/A was registered. After arrest of the accused, he alongwith case property were produced in the Police Station before Inspector Anil Dhaulta (PW-11), who resealed the parcel with three seals of seal impression ''O'', whereafter Inspector Anil Dhaulta handed over the parcel to Malkhana Incharge PW-9 HHC Kanshi Ram. The case property was sent by HHC Kanshi Ram on 12.02.2015 alongwith sample of seal, NCB form in triplicate, copy of FIR and copy of recovery memo through PW-5 Constable Aman Kumar to FSL, Junga.

After receipt of FSL report Ex.-PX, investigation was completed and challan was filed in the Court and as a prima facie case was found against the accused, accordingly he was charged for commission of offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substance Act, 1985, to which he pleaded not guilty and claimed trial.

Learned trial Court on the basis of evidence produced on record by the prosecution both ocular as well as documentary held that the evidence of the prosecution was true, cogent and satisfactory and the witnesses had given true account of the recovery of the charas, sealing of the parcel, preparation of the seizure memo, NCB forms and depositing of the case property at FSL, Junga for analysis. Learned trial Court held that statements of the witnesses were consistent, credible and confidence inspiring. None of the witnesses had any hostility to implicate the accused falsely and the testimonies of the prosecution witnesses satisfied the test of truthfulness. On these bases, it was held by the learned trial Court that the prosecution was able to establish beyond shadow of all reasonable doubts that on 11.02.2015, at about 6:20 p.m., at place Chambaghat, accused Suraj Bhan was found in exclusive and conscious possession of 1.200 Kgs. charas without any licence or permit. On these bases, learned trial Court convicted the accused for commission of offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

Feeling aggrieved by the said judgment, the accused has filed this appeal.

Mr. Vinod Thakur, learned counsel for the appellant has argued that the judgment of conviction passed by the learned trial Court is not sustainable in the eyes of law, as learned trial Court has erred in not appreciating that the prosecution in fact was not able to prove beyond reasonable doubt that any contraband in fact was recovered from the possession of the accused and the alleged bag from which the recovery of contraband was made by the police was in fact lying on a rack and the same was falsely foisted on the accused when no one claimed it. He further argued that learned trial Court erred in not appreciating that neither the independent witnesses nor police witnesses were able to prove and corroborate that either the bag from which the alleged recovery of contraband was made belonged to the accused or that he was in possession of the same or that from inside the said bag any contraband was found. He further argued that learned trial Court also erred in not appreciating that the entire case put up by the prosecution was a concocted one and in fact no recovery of any contraband was made from the accused in the mode and manner as was put forth by the prosecution and the same had resulted in travesty of justice as accused had been convicted for commission of an offence of which he was not guilty. It was further argued by the learned counsel for the appellant that learned trial Court otherwise also failed to appreciate that neither the alleged recovery of the contraband nor its seizure was carried out by the Investigating Officer as per the provisions of the NDPS Act and the statements of the witnesses with regard to alleged recovery of the contraband, its sealing and about the depositing of the same coupled with sending of special report and ruqua etc. were totally contrary to each other, which shrouded the case of the prosecution with suspicion and benefit of doubt thus had to go to the accused. Lastly, it was argued by the learned counsel for the appellant that even the presence of the police witnesses in the Police Station in the mode and manner, as has been projected by the prosecution, was highly doubtful as the statement of PW-4 was totally in contradiction to the deposition of PW-9 HHC Kanshi Ram. Learned counsel for the appellant substantiated it by submitting that whereas PW-4 has deposed that he was officiating as MHC in Police Station, Solan as regular MHC was on leave, but HHC Kanshi Ram appeared in the witness box as PW-9 and he deposed that he was the MHC of Police Station Sadar Solan. On these bases, it was argued by the learned counsel for the appellant that the judgment of the learned trial Court was not sustainable in the eyes of law and the same be set aside and appellant be acquitted of the offence for which he has been convicted.

Mr. V.S. Chauhan, learned Additional Advocate General has argued that there was no perversity with the findings returned by the learned trial Court against the accused, as prosecution had proved its case against the accused beyond all reasonable doubt and it stood proved from the evidence on record that the contraband in fact was recovered from the conscious and exclusive possession of the accused, which fact stood proved and corroborated both by independent witnesses as well as other prosecution witnesses. Mr. Chauhan further argued that perusal of the judgment passed by the learned trial Court demonstrated that learned trial Court had dwelled upon all aspects of the matter and after minutely going through the entire evidence produced on record by the prosecution both ocular as well as documentary, findings of guilt were returned by the learned trial Court against the accused. Mr. Chauhan further argued that records substantiated that the entire proceedings were conducted by the Investigating Officer strictly as per the statutory provisions of NDPS Act and there was no infirmity with the proceedings which were carried out either at the spot by the Investigating Officer or thereafter. On these bases, it was urged by the learned Additional Advocate General that there was no merit in the appeal and the same be dismissed.

We have heard the learned counsel for the appellant as well as learned Additional Advocate General and also Mr. Anup Chitkara, who on our request, assisted us in the case as Amicus Curiae.

In order to prove its case, the prosecution in all examined 12 witnesses.

PW-1 Harphul Singh deposed in the Court that he was posted as Record Clerk in Punjab Roadways Depot, Ludhiyana and he produced on record the original record of bus bearing No. PB10-DM- 8068.

PW-2 LC Poonam deposed in the Court that on 12.02.2015, LHC Verinder No. 213 had brought special report addressed to Dy. S.P., Headquarter and after perusing the same, Dy. S.P. had handed over the report to her for making necessary entry thereof in the relevant register. She further deposed that after making said entry, she prepared a photocopy thereof and handed over the photocopy to LHC Verinder.

PW-3 LC Archana proved on record original DDR.

PW-4 HC Kulwant Singh deposed in the Court that on 11.02.2015, Constable Verinder brought ruqua to Police Station and handed over the same to SHO, who in turn after making endorsement thereof, handed over the same to him for recording FIR in the relevant folder of the computer installed in the Police Station. He further deposed that he recorded the FIR and generated the computer prints thereon including FIR Ex. PW4/A and handed over the copies thereof to SHO Anil Daulta. He further deposed that on the same day, SHO directed him to make necessary entry in the DDR maintained in the form of folder in the computer installed in the Police Station with respect to resealing of the parcel and depositing it alongwith other articles detailed therein with MHC Malkhana, which entries were made by him in the DDR folder. He also deposed that on the next day, he made departure report of Constable Aman Kumar to FSL Junga alongwith the case property in the DDR folder.

PW-5 Aman Kumar deposed that on 12.02.2015, MHC Kanshi Ram, Malkhana Incharge, handed over to him a sealed parcel alongwith other case property against RC No. 187/14-15 for depositing them in FSL Junga and the same were safely deposited by him in the laboratory against receipt obtained on the RC itself, which was handed over back by him to MHC Malkhana.

PW-6 LHC Virender Kumar deposed in the Court that he was posted as a Constable in SIU, Solan since 2014 till March, 2015 and on 11.02.2015, he alongwith HC Ambi Lal, HC Om Parkash, Constable Amit Kumar and Constable Vinod Kumar proceeded to Chambaghat, Salogra in connection with patrolling and traffic duty and at about 6:20 p.m., when they were present near traffic booth, a Punjab Roadways bus bearing registration No. PB 10-DM-8068 came from Shimla side enroute Shimla to Ludhiana, which was intercepted by Head Constable. He further deposed that he and HC Ambi Lal entered the bus from the front door, whereas HC Om Parkash and others entered the bus from rear window. He further deposed that on seat No. 19, one Balvinder Kumar was sitting and on seat No. 20 the accused was sitting holding a black colour bag on his lap, whereas seat No. 21 was vacant. He further deposed that Head Constable searched the black colour bag of the person who was sitting on seat No. 20 and from inside the same, a white colour shawl and one microne packet were recovered and from inside the microne packet, a transparent packet of plastic wrapped with tape was recovered. He further deposed that at that time, he and Balvinder Kumar who was sitting on seat No. 19 as well as the conductor of the bus were associated by the Investigating Officer with the proceedings and when the packet recovered from the bag of the accused was opened, from inside the same, black colour hard substance in the form of ball was recovered, which after smelling by the Head Constable was found to be charas. This witness further deposed that accused disclosed his name Suraj Bhan and the contraband when weighed was found to be weighing 1.2 Kgs. This witness further deposed that the contraband was thereafter put in the same polythene packet and thereafter in the same black colour bag and sealed in a white cloth pulinda with four seal impression of seal "M". He further deposed that samples of seal were taken on a separate piece of cloth Ex. PW6/A. NCB form was filled at the spot and impression of seal "M" was affixed on NCB form as well as recovery memo. He further deposed that he alongwith conductor Sandeep Kumar and accused appended their signatures on parcel Ex. P-1 and on recovery memo Ex. PW6/B. He further deposed that the spot was photographed and videographed and HC Ambi Lal prepared the Ruqua, which was handed over to him for delivery to SHO for the purpose of registration of FIR. He further deposed that he took the ruqua and delivered it to SHO at 8:55 p.m. at Police Station Sadar, Solan, who thereafter handed over the case file to him which was delivered by him to HC Ambi Lal on the spot. He also deposed that on 12.02.2015, HC Ambi Lal handed over a special report to him to be delivered to Additional Superintendent Police, Solan, which was duly delivered by him.

PW-7 Balvinder Singh deposed in the Court that he was seated on seat No. 19 in the bus in issue on 11.02.2015 and was travelling from Shimla to Chandigarh. He further deposed that when the said bus reached at Chambaghat at around 6:15 p.m., the same was intercepted by the police and police officials entered the bus from the front door as well as from the rear window of the bus and started checking luggage of the passengers. This witness also deposed that accused Suraj Bhan was holding a black colour bag on his lap, which when opened by the police was found to be containing black colour substance in the form of balls in a polythene packet wrapped with tape. He further deposed that police had in fact shown the black substance to accused who disclosed that the same was charas. He further stated that the contraband when weighed was found to be 1.2 Kgs. He also deposed that photographs etc. were taken at the spot and thereafter police placed the contraband in the same packet and the packet was placed in the bag which was thereafter sealed in a white cloth with seal impression "M". He deposed that his signatures were there on parcel Ex. P-1. He also stated that recovery memo Ex. PW6/B and Ex. PW6/A were signed by him, conductor of the bus, by the accused as well as one police official.

Conductor of the bus Sandeep Kumar entered the witness box as PW-8 and he deposed that on 11.02.2015, he was deputed as conductor of bus bearing registration No. PB 10-DM-8068, which was enroute from Shimla to Ludhiana and which was being driven by Amar Jit Singh. This witness further deposed that the bus departed from Shimla at 5:00 p.m. and at around 6:15 p.m., when the bus reached Chambaghat, the same was intercepted by the police and police officials entered the bus from the front door as well as from the rear door and started checking the luggage of the passengers. He further stated that the accused was sitting on seat No. 20 and beside him one more person was sitting on one seat whereas one seat of the bench was vacant. He further deposed that accused was holding the pithoo bag on his lap and when the same was opened by the police, from inside the same, a shawl, a microne bag and a polythene packet were recovered, in which there was a black colour substance in the form of balls, which on smelling was found to be cannabis. He further deposed that police weighed the same, which was found to be weighing 1.2 Kgs. This witness further deposed that police sealed the cannabis with seal impression "M" and sample of seal was taken on Ex. PW6/A. He further deposed that document Ex. PW6/B as well as parcel Ex. P-1 and sample of seal Ex. PW6/A were signed by him, Balvinder, accused and one police official. He also stated that ticket Ex. P-4 was issued by him to the accused, which was issued from Shimla to Dharampur.

PW-9 HHC Kanshi Ram deposed in the Court that on 11.02.2015, he was working as MHC in Police Station Sadar, Solan and on the said date, SHO Anil Kumar handed over a pulinda sealed with four seal impression "M" and three seal impression "O" alongwith other case property, which was entered in the Malkhana register by him at Sr. No. 776/2015. He further deposed that he had sent the case property to FSL, Junga on 12.02.2015 through Constable Aman Kumar, who after depositing the same in the laboratory had handed over the copy of RC to him

HC Om Parkash entered the witness box as PW-10 and he deposed that he was posted as I.O. in SIU Solan since 2014 and on 11.02.2015, when he was present alongwith the police party at Chambaghat, a bus enroute from Shimla to Ludhiana was stopped at around 6:20 p.m. near traffic booth Chambaghat, which was checked by police officials and from inside the pithoo bag being held by the accused person who was sitting on seat No. 20, contraband was recovered. This witness also deposed that Balvinder was seated on seat No. 19 and said Balvinder alongwith the conductor of the bus, who disclosed his name as Sandeep, were associated in the process of investigation alongwith LHC Virender Kumar. This witness thereafter deposed about the search and seizure of the contraband from the accused.

Dy. S.P. Anil Dhaulta entered the witness box as PW-11 and he deposed about the factum of receiving ruqua from LHC Virender Kumar on 11.02.2015 and the factum of registration of FIR Ex. PW4/A on the basis of the same. This witness also deposed that on the same day at around 11:45 p.m., I.O. HC Ambi Lal came to the Police Station alongwith the accused and case property and that he (PW-11) resealed pulinda with three seal impression "O". He also deposed that he had filled column Nos. 9 to 11 of NCB form and had also put seal "O'' on the NCB form.

PW-12 HC Ambi Lal deposed in the Court that on 11.02.2015, he alongwith other police officials were on patrolling and traffic checking duty and at around 6:20 p.m., a Pubjab Roadways bus bearing registration No.PB10-DM-8068 on its way from Shimla to Chandigarh was intercepted and in the course of search of the luggage of the passengers sitting in the said bus from inside a pithoo which was held by the accused who was seated on seat No. 20, contraband was recovered, which when weighed was found to be 1.2 Kgs. He also deposed about the association of two independent witnesses besides LHC Virender Kumar with the search and seizure of the contraband from the accused. This witness also deposed about the mode and manner in which the contraband was recovered from the accused and the mode and manner in which he sealed the same and obtained the signatures on recovery memo etc. of the witnesses as well as the accused and about sending ruqua through LHC Virender to the Police Station and the registration of FIR. This witness also deposed about other codal formalities which were fulfilled by him on the spot and also about the proceedings being photographed as well as vediographed. This witness also deposed that on 12.02.2016, a special report of the case was prepared by him and sent to Additional Superintendent of Police, Solan through LHC Virender. He also stated that after receipt of FSL report Ex.-PX, case file was handed over to Anil Dhaulta for preparation of challan.

A perusal of the statements of the prosecution witnesses demonstrate that the prosecution in the present case had successfully proved beyond the scope of reasonable doubt the mode and manner in which the contraband was recovered from the accused and the entire proceedings and investigation thereafter undertaken by the police without any breakage of the chain of links. Recovery of contraband from the accused has been proved by the statement of the Investigating Officer and the same has been duly corroborated by two independent witnesses, i.e. PW-7 Balvinder Singh and PW-8 Sandeep Kumar as well as PW-6 Virender Kumar. Though all the prosecution witnesses were subjected to lengthy cross-examination, however, their credibility could not be impeached by the defence. The statements of the independent witnesses are cogent, reliable and trustworthy and they also inspire confidence of the Court.

Besides, in the present case, testimonies of police witnesses are also cogent and reliable, as neither their credibility was impeached by the defence during cross-examination nor anything could be elucidated from their cross-examination by the defence to shroud the case of the prosecution with suspicion. Not only this, as we have already mentioned above, the testimonies of the police officials are duly corroborated by the independent witnesses and it is not the case of the defence that the said independent witnesses were deposing falsely against the accused on account of any enmity or animosity with the accused.

The argument raised by the learned counsel appearing for the appellant that prosecution was not able to prove beyond reasonable doubt that any contraband in fact was recovered from the possession of the accused, is without any merit. In this case, recovery of the contraband from the accused has been duly proved and corroborated by the statement of PW-12, Investigating Officer Ambi Lal as well as the statements of PW-6 LHC Virender Kumar, PW-7 Balvinder Singh and PW- 8 Sandeep Kumar. There are neither any inconsistencies nor any contradictions in the statements of police witnesses or independent witnesses. All these witnesses have in one voice deposed the sequence in which the contraband was recovered from the possession of the accused. Learned counsel for the appellant during the course of arguments was not able to substantiate as to how the proceedings conducted by the Investigating Officer were not in consonance with the statutory provisions of the Narcotic Drugs and Psychotropic Substance Act, 1985. His argument that the statements of witnesses with regard to alleged recovery of contraband, its sealing etc. and sending of ruqua etc. are contrary to each other, is not borne out from the records of the case and as we have already held above, in the case at hand, the recovery of contraband, its sealing and the subsequent proceedings conducted at the spot and at the Police Station have been duly proved and corroborated by the testimonies of prosecution witnesses, in which we neither find any inconsistency nor any contradictions. The contention of the learned counsel for the appellant that the depositions of PW-4 and PW-9 create serious doubts over the veracity of the case of the prosecution, is also without any merit. The argument raised by learned counsel for the appellant that there could not have been two MHCs. present in the Police Station, does not hold any water because the roles which have been performed by PW-4 and PW-9 are neither in conflict with each other nor the depositions of PW-4 and PW-9 give rise to any suspicion that the story put forth by the prosecution is a concocted one. PW-4 has only deposed with regard to the entries which were made by him in the computer on the directions of the SHO and he has not stated that he performed any of the acts which otherwise were deposed by PW-9 HHC Kanshi Ram to have been performed by him. Therefore, it cannot be said that any false statement has been made either by PW-4 HC Kulwant, PW-9 HHC Kanshi Ram or PW-11, the then SHO Anil Dhaulta. The argument raised by learned counsel for the appellant that in fact there is contradiction in what was recovered from the bag of the accused as per the Investigating Officer and what was received at the FSL, Junga as per FSL report, is also without any merit. Perusal of Ex. PW6/B search and seizure form demonstrates that from inside the pithoo being carried by the accused, a microne bag was recovered and from inside the microne bag, one plastic packet was recovered and the contraband was kept in the same. Column No. 10 of FSL report Ex.-PX reads as under: "On opening the sealed cloth parcel, the exhibit stated as charas, in the form of balls, was found in white, red & green coloured bag alongwith white, red & yellow coloured poly bag."

This demonstrates that there is no contradiction in what was recovered from the bag of the accused as per the prosecution and what was received at FSL, Junga by way of case property.

Therefore, in view of the discussion held above, in our considered view, it cannot be said that the judgment of conviction returned by the learned trial Court against the accused is either perverse or the findings so returned by the learned trial Court are not borne out from the records of the case. In fact, a perusal of the judgment passed by the learned trial Court demonstrates that the learned trial Court has in detail dealt with the entire evidence which was placed on record by the prosecution and after due application of mind on the same, it has returned the findings of conviction against the accused, with which we concur.

In view of the discussion held above, as there is no merit in the present appeal, the same is dismissed.