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2013 Supreme(HP) 917
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Sanjay Karol, Rajiv Sharma, JJ.
Om Parkash - Appellant
Versus
State of Himachal Pradesh - Respondent
Criminal Appeal No. 654 and 659 of 2008
Decided On : 24-12-2013
For the Appellant :N.K. Thakur, Senior Advocate with Surinder K. Sharma, Advocate.
For the Respondent:Shrawan Dogra, Advocate General with D.C. Pathik and R.S. Verma, Addl. AGs and Ramesh Thakur, Assistant Advocate General.
The central legal point established in the judgment is that the prosecution must prove the recovery of contraband substance from the conscious and exclusive possession of the accused beyond reasonable doubt to establish guilt under the NDPS Act.
Headnote:
Narcotic Drugs and Psychotropic Substances Act - Conviction under Section 20 - 1985 - Summary of Acts and Sections: NDPS Act, Section 20 - The court upheld the conviction of the accused for possession of contraband substance based on the recovery from their conscious and exclusive possession. The court found that the prosecution had proved the recovery beyond reasonable doubt and that the accused failed to provide any explanation for the presence of the contraband substance in their vehicle.
Fact of the Case:
The accused were convicted for possession of contraband substance under Section 20 of the NDPS Act based on the recovery from their vehicle. The prosecution established the recovery beyond reasonable doubt, and the accused failed to provide any explanation for the presence of the contraband substance.
Finding of the Court:
The court upheld the conviction and sentence passed by the trial court, finding that the prosecution had proved the recovery of contraband substance from the conscious and exclusive possession of the accused beyond reasonable doubt.
Issues: The issues included the recovery of contraband substance from the accused, the efforts made by the police to search the accused, and the contradictions in the prosecution's case.
Ratio Decidendi: The court found that the recovery of the contraband substance from the conscious and exclusive possession of the accused was established beyond reasonable doubt, and the accused failed to provide any explanation for its presence in their vehicle.
Final Decision: The appeals were dismissed, and the judgment of conviction and sentence passed by the trial court was upheld.
Sanjay Karol, J. - These appeals arise out of a common judgment dated 22.09.2008, passed by learned Special Judge, Chamba Division Chamba, H.P., in Sessions Trial No. 58 of 2007, titled as State of Himachal Pradesh v. Om Parkash & another, whereby both accused Om Parkash (appellant in Cr.Appeal No. 654 of 2008) and Mela Ram (appellant in Cr.Appeal No. 659 of 2008), stand 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 NDPS Act) and sentenced to undergo rigorous imprisonment for a period of ten years and pay fine of Rs. 1,00,000/- each and in default thereof, to further undergo simple imprisonment for a period of one year.
2. The appeals were argued together by the same learned Senior counsel and since common question of law and facts are involved, are being disposed of together by a common judgment.
3. It is the case of prosecution that on 23.01.2007, Constables Virender Singh (PW.1), Mahinder Singh (PW.2), Ramesh Kumar (PW.8) and Head Constable Ashok Kumar (PW.10), amongst others, had set up a Nakka at zero point Jassourgarh, falling within the jurisdiction of Police Station, Tissa, District Chamba, H.P. At about 3.00 AM, one Jeep (Bolero) bearing No. HP-01C-3017 came from Nakrod side. The vehicle was stopped. Accused Mela Ram was on the wheel and owner Om Parkash was sitting alongside him. The vehicle was searched. Bonnet of the vehicle was opened by Constable Mahinder Singh (PW.2), where he found one bag (Ex.P-4). The same was opened. Yellow polythene envelope (Ex.P-5) was found inside this bag. Police opened this envelop and found charas like substance in the shape of sticks. While the police party was carrying out search, taking advantage of darkness both the accused fled away from the spot. PW.2 went to Bhanjraru bazar and got the weighing scales from Mustafa (PW.3). Contraband substance was weighed and found to be of 5 Kg. 500 grams. Two samples of 25 grams each, were drawn. Sample and the remaining bulk parcel were sealed with seal impression A. Rukka (Ex.PW.9/A) was prepared and sent to the Police Station through Constable Virender Singh (PW.1), on the basis of which, Inspector Hem Singh (PW.9) SHO Police Station, Tissa, registered FIR No. 8/07 dated 23.01.2007 (Ex.PW.1/C), under the provisions of Section 20 of NDPS Act. Constable Virender Singh took the file back to the spot and handed it over to H.C. Ashok Kumar (PWE.10). Special report was sent to S.P. Chamba through constable Ramesh Kumar (PW.8). Police conducted the investigation on the spot by preparing seizure memo, site plan etc. Thereafter H.C.Ashok Kumar (PW. 10) handed over the investigation to Addl.SHO Swaru Ram (not examined), who took the samples, NCB form (Ex. PW.9/E) etc. to Police Station, Tissa and in the presence of L.C. Uma Kumari (PW.4), handed it over to Inspector/SHO Hem Singh (PW.9). The samples were resealed with seal impression S and deposited with MHC Charan Singh (PW.6). The sealed samples were sent by PW.6 through Constable Virender Singh (PW.1) for chemical analysis to FSL Junga. FSL report (Ex.PW.9/D) was received by the police, which revealed that the contraband substance was Charas. With the completion of investigation, challan was presented by PW.9 in the Court, for trial.
4. Both the accused were charged for having committed offences punishable under the provisions of Section 20 of the NDPS Act, to which they did not plead guilty and claimed trial.
5. In order to establish its case, prosecution examined as many as ten witnesses and statements of the accused under Section 313 Cr.P.C. were also recorded, in which they took up a defence of false implication and innocence. No evidence was led in defence.
6. Attacking the findings and the judgment rendered by the trial Court, Mr.N.K.Thakur, learned Senior counsel argued that: (1) Prosecution has failed to prove and establish recovery of contraband substance
