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2017 Supreme(HP) 271
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Sanjay Karol, Ajay Mohan Goel, JJ.
Umed Singh – Appellant
Versus
State of H.P. – Respondent
Cr. Appeal No. 499 OF 2016
Decided On : 18-04-2017
For the Appellant :Mr. Anoop Chitkara, Advocate
For the Respondent: Mr. V.S. Chauhan, Addl. AG., with Mr.Vikram Thakur, Dy. AG.
The reliability of prosecution witnesses and the statutory presumption under Section 35 of the Narcotic Drugs and Psychotropic Substances Act, 1985 were central to establishing the guilt of the accused.
Headnote:
Narcotic Drugs and Psychotropic Substances Act - Conviction under Section 20 - 1985 - Summary of Acts and Sections: Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 - The court discussed the testimonies of prosecution witnesses, the recovery of contraband substance, and the statutory presumption under Section 35 of the Act. The testimonies of the witnesses were found to be reliable, leading to the conviction of the accused.
Fact of the Case:
The accused was convicted for possessing charas, and the prosecution established the recovery of the contraband substance from the conscious possession of the accused. The accused's defense and alibi were not substantiated, and no evidence in defense was led by the accused.
Finding of the Court:
The court found the prosecution's evidence to be reliable and the accused guilty of the charged offense. The court also held that there was no reason to interfere with the judgment passed by the trial court, as it had fully appreciated the evidence placed on record.
Issues: The issues revolved around the recovery of the contraband substance, the reliability of the prosecution witnesses, and the defense's failure to substantiate the alibi and challenge the prosecution's evidence.
Ratio Decidendi: The court relied on the testimonies of the prosecution witnesses, the statutory presumption under Section 35 of the Act, and the lack of substantiated defense to establish the guilt of the accused.
Final Decision: The appeal was dismissed, and the judgment passed by the trial court was upheld.
Sanjay Karol, J.
1. In relation to FIR No.96/2015, dated 17.04.2015, registered at Police Station Sadar, District Kullu, H.P., accused stands convicted for having committed an offence punishable under the provisions of Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act). He is to undergo rigorous imprisonment for a period of ten years and pay fine of Rs.1 lac and in default thereof further undergo rigorous imprisonment for a period of two years.
2. Trial Court found the prosecution to have established its case of having recovered 1 kg 460 grams of charas from the conscious possession of the accused. It was on 17.04.2015, that the police party recovered it from a place known as Bhurji (Malana road), Kullu, District Kullu, H.P.
3. Through the testimonies of C. Nitish Kumar (PW.1), Ashok Kumar (PW.2) and HC Deepak Kumar (PW.12), prosecution establishes recovery of the contraband substance. Through the testimonies of Nitish Kumar and SI Jitender Kumar (PW.8), prosecution wants to establish that Rukka (PW.1/D) was carried to the Police Station and same day FIR (Ex.PW.8/A) was registered. Through the testimonies of SI Jitender Kumar and HC Gajender Pal (PW.3), prosecution wants to establish that the case property so recovered was resealed at the Police Station and deposited in the Malkhana. Further C. Sunil Mahant (PW.6), carried the same to the Forensic Science Laboratory, Junga, where it was examined and report (Ex.PX) brought back. Through the testimonies of C. Ajay Sharma (PW.11) and HC Deepak Kumar, prosecution wants to establish that information about the incident came to be passed on to the superior officer.
4. Significantly, in the instant case, prosecution did associate an independent person as a witness while carrying out search and seizure operations. In this regard, the said person, namely, Ashok Kumar (PW.2) has fully supported the prosecution.
5. Trial Court has succinctly dealt with the issue of minor contradictions and inconsistencies in the testimonies of the aforesaid witnesses, they being trivial in nature. Before this Court, much emphasis is laid on the fact that Ashok Kumar stands introduced by the police, only to falsely implicate the accused. Also no endeavour was made by the police to associate any respectable person of the locality, while carrying out search and seizure operations.
6. At this juncture, one may only observe the defence and the alibi taken by the accused, which in his own words is reproduced as under:-
“Q.35:- Why this case is made against you?
Ans:- False case has been made against me. Police party has recovered the charas from one Bal Krishan and said Bal Krishan has not been interrogated by the police.
Q.36:- Why the witnesses have deposed against you?
Ans:- All the witnesses were influenced by the police, so they have deposed against me.
Q.37:- Do you want to say anything else?
Ans:- I am innocent. I have been falsely implicated in this case. On that day, I was coming back from Malana with my family after Mandir Darshan.”
7. Noticeably no evidence in defence was led by the accused. Who is this Bal Krishan has also not been disclosed by him. Also neither he nor his family members protested against his illegal detention at any point in time. As required by law, accused was produced before the Magistrate, when also no such grievance was made. Why would police influence the witnesses or falsely implicate the accused, remains undisclosed. The defence remains improbablized.
8. Be that as it may, independent of the defence taken by the accused, this Court is obliged in law, to appreciate the evidence led by the prosecution, leading to his conviction and ascertain as to whether the findings returned are borne out from the record or not.
9. HC Deepak Kumar (PW.12), who also conducted the investigation, states that on 17.04.2015, while on duty, at a place near Bhurji (Malana road) they saw the accused come from Malana. Noticing the police party, acc
