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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
SABINA, SATYEN VAIDYA, JJ.
Sh. Lal Chand, S/o Sh. Katku Ram - Appellant
Versus
State Of Himachal Pradesh - Respondent
Criminal Appeal No. 137 of 2018
Decided on : 30-03-2022
Narcotic Drugs & Psychotropic Substances Act, 1985 - Section 20 - Code of Criminal Procedure, 1973 - Section 313, 391 - Indian Evidence Act, 1872 – Section 137 - Appeal against judgment - Examination-in-chief - Appellant was noticed by police party, who got perplexed and was seen throwing a bag out of his pocket - Appellant was apprehended - Police party entertained suspicion - Despite efforts no independent witness could be found - Bag thrown by appellant was checked and charas weighing 1 kg 600 grams was found - Appellant was formally arrested vide arrest memo.
Findings of the Court:
Court has examined statements of spot witnesses with absolute care and caution and has found these witnesses worth credence - The recovery of 1kg 600grams of charas has duly been proved from exclusive and conscious possession of appellant - It has been contended on behalf of appellant that non association of independent witnesses was a mere pretense - Be that as it may, in Court considered view, non-association of independent witnesses will not affect outcome of case for reason that recovery of contraband from appellant has duly been proved. Additionally, entire link evidence also provides corroboration to hypothesis in favour of prosecution case - plea of appellant that he had not instructed his counsel with respect to aforesaid defence is falsified - Appellant had omitted to lead defence evidence at his option - It is not understandable, in case there was lack of communication between appellant and his counsel, how prosecution witnesses could be cross-examined in the manner as aforesaid - Appellant cannot be allowed to fill-up the lacunae at this stage.
Result: Appeal is dismissed.
JUDGMENT :
Mr. Satyen Vaidya, J.
Appellant, is in appeal against the judgment dated 09.10.2017, passed by learned Special Judge-II, Kullu, H.P. in Sessions Trial No. 18/2016, whereby the appellant has been convicted for commission of offence punishable under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short ‘ND&PS’ Act) and has been sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000/- and in default of payment of fine to undergo further simple imprisonment for one year.
2. The facts, on which prosecution based its case are as under:
(ii) At about 9:00 PM, at place known as Zero-point Dhaugi, appellant was noticed by police party, who got perplexed and was seen throwing a bag out of his pocket.
(iii) Appellant was apprehended. Police party entertained suspicion. Despite efforts no independent witness could be found. PW-9 HHC Man Chand and PW-10 HHC Sheesh Ram were associated as witnesses. The bag thrown by appellant was checked and charas weighing 1 kg 600 grams was found.
(iv) The recovered charas was placed inside the same carry bag from which it was found and the said carry bag was placed inside a cloth parcel, which was sealed with eight seals of seal impressions “T”. NCB form Ext. PW5/A was filled in triplicate by PW-11 ASI Swarn Singh. Seizure memo Ext. PW9/B was prepared. “Rukka” Ext. PW8/A was prepared and sent to Police Station Banjar through PW-9 HHC Man Chand for registration of FIR.
(v) FIR Ext. PW8/B was registered. Appellant was formally arrested vide arrest memo Ext. PW-10/F. Spot map Ext. PW-11/A was prepared. Photographs were clicked on the spot and were later developed as Ext. PW-10/A to PW-10/E. Personal search of the appellant was conducted vide memo Ext. PW-10/G.
(vi) The case property along with appellant were taken to Police Station Banjar and handed over to PW-8, SHO ASI Anant Ram, who resealed the cloth parcel containing contraband with four seals having impression “N”. Columns 9 to 11 of NCB form were filled. The case property was handed over to PW-5, MHC Alam Gir, to be kept in “Malkhana”.
(vii) On 26.01.2016, the case property was sent by PW-5 MHC Alam Gir to SFSL Junga for chemical examination through PW-7 C. Sonu Ram.
(viii) On 19.02.2016, PW-1, HHC Bahadur Singh brought the contraband along with SFSL report to the police station and handed over the same to PW-5 MHC Alam Gir for safe custody.
(ix) On 23.01.2016, special report Ext. PW3/A was sent to Additional Superintendent of Police, Kullu, H.P., who after making his endorsement handed over the same to PW-3 HC Nirat Singh for record.
Necessary entry was made in the relevant register Ext. PW3/B. On chemical examination, substance recovered from the appellant was found to be Charas/Cannabis. On completion of investigation, the challan was filed.
3. Learned Special Judge-II, Kullu, charged the appellant for commission of offence punishable under Section 20 of ND&PS Act. Appellant pleaded not guilty and claimed trial.
4. Prosecution examined eleven witnesses. Appellant was examined under Section 313 of Cr.P.C. Appellant did not lead any defence evidence. On completion of trial, learned Special Judge convicted and sentenced the appellant as noticed above.
5. Along with memorandum and grounds of appeal, the appellant has also preferred an application under Section 391 of the Code of Criminal Procedure read with Section 137 of the Indian Evidence Act, for the following relief:-
6. Keeping in
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