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HIMACHAL PRADESH HIGH COURT
Dharam Chand Chaudhary and
Vivek Singh Thakur, JJ.
Lal Chand —Appellant
versus
State of H.P. —Respondent
Criminal Appeal No.660 of 2017
Decided on 29.2.2020
For the Appellant:Mr. Dibender Ghosh, Advocate, as Legal Aid Counsel
For the Respondent:Mr. Vikas Rathour and Mr. Narinder Guleria, Additional Advocates General
IMPORTANT POINTS
(1) NDPS Act in fact is a piece of social legislation enacted with sole idea to curb illicit trafficking of drugs.
(2) Stringent the punishment, higher the assurance of evidence for conviction and sentencing is required.
Headnote:
Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 20 – Seizure of Charas – Conviction and sentence – Courts do not reject case of prosecution only for not joining or associating independent witnesses – In present case, no plausible, satisfactory explanation has come on record for not joining or associating independent witnesses – In absence of independent witnesses, testimony of official witnesses is not to be discarded only on this count – In case evidence on record, otherwise is found cogent, reliable and trustworthy, conviction can be based upon testimony of official witnesses only – But, in present case, prosecution has chosen not to produce even available official witness(es) – It is quality of evidence not quantity which matters but where no independent witness is there and punishment for offence charged is also stringent, prosecution should have examined available witnesses to corroborate version of Investigating Officer – Testimony of police official with respect to timings claimed in documents, as well as in their deposition, is not trustworthy – Withholding examination of HHC is also fatal to prosecution – Cumulative effect of contradictions, discrepancies and embellishments definitely renders prosecution story to be doubtful – Stringent the punishment, higher the assurance of evidence for conviction and sentencing is required – For awarding stringent punishment, strict proof of commission of offence, by leading cogent, reliable, tangible and convincing evidence is necessary, which is lacking in present case – Conviction and sentence imposed upon accused set aside and he is acquitted of charged offence, by giving him benefit of doubt. (Paras 21, 22, 23, 24, 27, 28 and 29)
Per Dharam Chand Chaudhary, J. (Assenting View)
Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 20 – Seizure of Charas – Conviction and sentence – With increasing menace of drug addiction, drug peddlers do not deserve any leniency – Offence committed by accused is not only heinous, but also serious in nature because illicit trafficking of drugs not only affect a particular individual, but society at large and in particular, our young generation – Act in fact is a piece of social legislation enacted with sole idea to curb illicit trafficking of drugs – There is need to maintain balance between various safeguards available to an offender under the Act vis-à-vis rights of society as a whole – Courts seized of matter should ignore variation of time if not fatal to prosecution case – It is Public Prosecutor seized of prosecution best person to adjudge desirability and suitability of witness(s) to be examined in Court or given up – It is not quantity of evidence collected by Investigating Agency and produced during course of trial in Court, but its quality – It is accused entitled to benefit of doubt in case evidence produced is not cogent and reliable and even there is also no legal requirement to examine each and every witness associated by Investigating Officer during course of search and seizure – Prosecution cannot take any benefit out of plea even if falsely raised by accused in his defence – Conviction and sentence set aside. (Paras 2, 7, 9 and 10)
Result: Appeal allowed.
JUDGMENT
Vivek Singh Thakur, J.—The present appeal has been preferred by accused-convict-appellant Lal Chand against the judgment dated 25.3.2017, passed by learned Additional Sessions (Special) Judge, Kullu, District Kullu, Himachal Pradesh, in Sessions Trial No.38 of 2015, titled as State of Himachal Pradesh v. Lal Chand, whereby the accused has been convicted for having committed an offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act) and sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.1,00,000/-, and further to undergo simple imprisonment for a period of one year in case of default of payment of fine.
2. We have heard learned counsel for the accused, learned Additional Advocate General, and also gone through the record.
3. Prosecution case in brief is that a police party, headed by ASI Dinesh Kumar (PW-9), consisting of HHC Tikkam Ram (not examined), HHC Chet Ram (PW-8), had left Police Station, Sadar (Kullu) in official vehicle, bearing No.HP-34A-9986, being driven by Constable Karam Chand (not examined), for patrolling in the jurisdiction of Police Station, Sadar (Kullu), after making DD Entry No.7, dated 28.3.2015 at 4 a.m. (Ex.PW-5/A). At about 5.15 am, when police party was present near Raugi Nala, on the road from Kullu to Manali, a person, carrying a bag in his hand, was noticed coming on foot from Manali side to Kullu side, who, on noticing the police party, took about turn and started running towards Manali, whereupon he was chased and apprehended by ASI Dinesh Kumar (PW-9), with the help of other police officials, at a distance of 10 metres and was asked reason for running from the spot, but he could not give satisfactory answer. On asking about his carry bag, he started trembling and did not answer anything, causing suspicion of carrying stolen articles and necessitating the search of his bag. As per prosecution case, at that time, there was no movement on the road and the place was secluded. Therefore, PW-9 ASI Dinesh Kumar sent HHC Tikkam Ram in search of witneses towards Kayas, who returned after about 20 minutes and informed that he did not find any person, which led to the forming of search party by associating PW-8 HHC Chet Ram and HHC Tikkam Ram (not examined), for carrying out search and seizure procedure. Before conducting search of the accused, the police party gave its search to the accused vide Memo Ex. PW-8/A, and thereafter during search of the bag of the accused, stick-shaped black substance was found wrapped in a transparent polythene envelope. On the basis of experience, after smelling the substance, it was identified as charas. After weighing the same, alongwith the carry bag, on Electronic Weighing Machine, it was found to be 2.015 kg. Thereafter, the contraband substance, alongwith the carry bag, was sealed in a cloth parcel with seal impression ‘I’ and taken into possession vide Memo Ex.PW-8/E, which was signed by the accused and two witnesses, namely PW-8 HHC Chet Ram and Tikkam Ram, copy of which was also supplied to the accused, free of cost. Facsimile of the seal Ex.PW-8/B was also taken on a piece of cloth. Thereafter, Ruka (Ex.PW-8/C) was prepared and sent to Police Station, Kullu, through PW-8 HHC Chet Ram, who reached the Police Station at 9.15 a.m. and handed over the same to SHO Anil Kumar (PW-4). On the basis of Ruka, FIR No.77/15, dated 28.3.2015 (Ex.PW-4/A) was registered at 9.15 a.m. and after making endorsement (Ex.PW-4/B) on the Ruka, the case file was handed over to PW-8 Chet Ram for giving it to Investigating Officer ASI Dinesh Kumar.
4. It is the case of prosecution that the accused was arrested on the spot at about 10.30 a.m., after giving him information about his arrest vide Memo Ex.PW-8/F, which was signed by the accused as well as Tikkam Ram (not examined) and PW-8 Chet Ram. After arrest of the accused, his personal search was conducted vide Memo
