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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
MS. SABINA, SATYEN VAIDYA, JJ
Parkash Chand S/o Sh. Chet ram – Appellant
Versus
State Of Himachal Pradesh – Respondent
Criminal Appeal No. 648 OF 2017
Decided on : 21-07-2022
Code of Criminal Procedure, 1973 - Section 313, 437 - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 20 – Appeal - Search and seizure – Charas weighing 1 K.G. 900 grams was recovered - Appellant approaching ‘Dhabas Kenchi’. He was holding a bag, which he threw on noticing the police and tried to run away from the spot. The appellant was apprehended by the police. The bag thrown by him was checked and charas weighing 1 K.G. 900 grams was recovered - It is not necessary that without support of independent witness, prosecution case cannot stand, however, for arriving at such conclusion, the evidence led by prosecution must appear to be convincing and trustworthy. (Para 10).
Finding of the Court :
It is evidently clear that evidence brought by prosecution is shaky and not convincing at all. In given circumstances, fact that PW-1 had not supported prosecution version also becomes relevant - An inference can be drawn that PW-1 was sought to be examined as a procured witness. The contradictions in statements of spot witnesses PW-5, PW-6 and PW-11 are not of such nature which can be ignored. The incident was and prosecution witnesses were examined in September of same year. There was not a very long lapse of time between incident and examination of witnesses so as to infer that witnesses might have become forgetful. PW-8 HHC was not present on spot, however, he was shown to be part of police party - It appears that he was kept as a reserved witness - It cannot be believed that PW-5 and PW-6, who were allegedly police officials closely associated at time of recovery of contraband and spot investigation carried thereafter would be making different statements in respect of material particulars, such as, personal search of accused as well as the police party, checking of vehicles, distance of spot from Dhabas, existence of Dhara, clicking of photographs etc. It only reflects that they were not truthful witnesses - Court has failed to take notice of weakness in prosecution evidence detailed above - Special Judge has clearly erred in holding that no contradictions were found in statements rendered by prosecution witnesses so as to entertain suspicion - Special Judge has clearly erred in convicting appellant by ignoring very cardinal principle of criminal jurisprudence.
Result – Appeal disposed of
JUDGMENT :
By way of instant appeal, appellant has assailed the judgment dated 31.10.2017 passed by learned Special Judge-II, Shimla, H.P. in Sessions Trial No. 29-S/7 of 2016, whereby the appellant has been convicted for commission of offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “NDPS” Act) and sentence order dated 03.11.2017 whereby the appellant has been sentenced to undergo rigorous imprisonment for a term of ten years and to pay fine of Rs.1,00,000/-. In default of payment of fine, the appellant has further been sentenced to undergo simple imprisonment for one year.
2. The case of the prosecution in brief is that on 17.03.2016 PW-11 ASI Partap Singh, PW-5 HC Dalip Singh, PW-6 C. Dinesh Kumar and PW-8 HHC Ratti Ram, No. 837 left the Police Station, Chopal at about 6.00 P.M. towards place known as ‘Dhabas Kenchi’ in official vehicle No. HP07A-0686 with C. Kedar Singh No. 391 as driver on routine patrol duty. DDR No. 15 Ex.PW-2/A was recorded in this behalf. The police party reached ‘Dhabas Kenchi’ and at about 7.45 P.M. noticed the appellant approaching ‘Dhabas Kenchi’. He was holding a bag, which he threw on noticing the police and tried to run away from the spot. The appellant was apprehended by the police. The bag thrown by him was checked and charas weighing 1 K.G. 900 grams was recovered therefrom.
The bag also contained one weighing scale with one weight of 500 grams, two weights of 200 grams and one weight of 100 grams. The identification memo Ex. PW-5/A was prepared. The police had found PW-1 Mangat Ram at the spot sitting in rain shelter, who was also associated as a witness. The recovered charas was re- packed in the same bag alongwith the weighing scale and weights, which further was sealed in a cloth parcel with six seals bearing impression ‘T’. The facsimile of sample seal was preserved. Recovery and seizure memo Ex. PW-5/B alongwith facsimile of specimen seal Ex.PW-5/C were prepared. The relevant columns of NCB form Ex.PW-11/A were filled on spot. Rukka Ex.PW-11/B was prepared and was sent to Police Station, Chopal for registration of FIR through PW-6 C. Dinesh Kumar alongwith NCB Form and case property.
3. FIR Ex.PW-12/A was registered on the basis of Rukka Ex.PW-11/B. PW-12 SHO/SI Gulam Akbar carried the re-sealing proceedings by placing the sealed cloth parcel received from the spot in another cloth parcel. Six seals of impression ‘A’ were affixed. The certificate of re-sealing Ex.PW-12/D was issued. The case property was handed over to MHC PW-9 HC Sohan Singh.
4. The appellant was formally arrested by PW-11 ASI Partap Singh on the spot vide arrest memo Ex.PW-11/E. Spot map Ex.PW-11/C was also prepared. Special report Ex.PW-3/A was prepared by PW-11 ASI Partap Singh and was sent to SDPO, Chopal on 18.3.2016 through PW-3 C. Atul Kumar. The SDPO, Chopal was not in station, hence the special report was delivered to him at Police Headquarter at Shimla on 18.3.2016 at 4.50 P.M. An abstract of the entry made in this behalf in the relevant register is Ex.PW-3/B.
5. The case property was sent to SFSL, Junga for chemical analysis. As per report Ex.PW-11/F of SFSL, Junga, the substance examined by it was found to be extract of cannabis and sample of Charas.
6. On completion of investigation, challan was prepared. Prosecution examined total 12 witnesses. PW-5 HC Dalip Singh, PW-6 C. Dinesh Kumar and PW-11 ASI Partap Singh were examined as spot witnesses. PW-1 Mangat Ram was examined as an independent witness. PW-3 C. Atul Kumar, PW-7 HC Preetam Singh and PW-10 Munish Dadhwal, SDPO, Chopal were examined to prove the despatch and receipt of special report. PW-2 C. Naresh Kumar was examined to prove the DDR No.15 dated 17.3.2016 Ex.PW-2/A. PW-4 C. Subhash Chand was examined to prove the transit and safe custody of case property alongwith relevant documents from Police Station, Chopal to SFSL, Junga on 19.3.2016. PW-8 HHC Ratti Ram was examined to prove the transit and safe cust
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