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HIGH COURT OF HIMACHAL PRADESH
Sabina, Satyen Vaidya, JJ
Noop Ram – Appellant
Versus
State of Himachal Pradesh – Respondent
CRIMINAL APPEAL NO. 32 OF 2018
For the Appellants/Petitioners: Vinay Thakur, Maan Singh
For the Respondents: Kamal Kant
The absence of independent witnesses in NDPS cases is not fatal to the prosecution's case if the testimony of police officials is found reliable, consistent, and corroborated, especially when statutory procedures for recovery and investigation are properly followed.
Headnote:(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 20 - Recovery of contraband - Absence of independent witnesses - Effect of - Court holding that while non-association of independent witnesses is not fatal, it requires the court to scrutinize police testimony with greater care to ensure reliability and negate potential mischief. (Paras 6, 8, 9)
(B) Appellate Jurisdiction - Sentencing - Re-appreciation of evidence - Court affirming that police witnesses who corroborate each other on material aspects are reliable, and that evidentiary discrepancies regarding exact locations do not necessarily weaken the prosecution's case when other facts remain unchallenged. (Paras 8, 10, 11)
Facts of the case:
The appellant was apprehended by police a patrol duty near a bridge, where he was found in possession of approximately 1.6 kg of charas. He was convicted by the trial court under the NDPS Act. The appellant appealed, arguing that independent witnesses were available but not summoned, and alleged contradictions in police testimony.
Findings of Court:
The court found that the prosecution discharged its initial burden of proof. The police witnesses provided reliable and consistent testimony. The court held that the appellant failed to provide a credible explanation for his conduct, and statutory requirements, including re-sealing and reporting, were duly met.
Issues: The main issues were the impact of failing to secure independent witnesses despite the location being near a town, and whether there were material contradictions in the evidence sufficient to create reasonable doubt.
Ratio Decidendi: Under the NDPS Act, the prosecution must initially establish a prima facie case; once established, the burden shifts to the accused. Absence of independent witnesses is not automatically fatal if police testimony is otherwise trustworthy and corroborated. Minor discrepancies in location do not undermine the core recovery facts if the police procedure is followed and verified.
Result: Appeal dismissed.
This appeal coming on for hearing this day, Hon’ble Mr. Justice Satyen Vaidya, delivered the following:
J U D G M E N T
By way of instant appeal, appellant has assailed judgement and sentence dated 28.11.2017 passed by learned Special Judge-II (Additional Sessions Judge), Kullu, H.P. in Sessions Trial No.23 of 2016, whereby 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 has been sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/- (One lac) and in default of payment of fine, to further undergo simple imprisonment for one year.
The facts on which the case of prosecution rested are that on 28.12.2015, a police party headed by HC Jamal Deen (PW-8) left Police Station, Kullu at about 9.57 P.M. for routine patrol duty in official vehicle No. HP-33A-9986. (PW-8), HC Jamal Deen was accompanied by HHC Shyam Dass (PW-6) C. Mahesh Kumar (PW-7) and C. Sunil Mahant, driver of the official vehicle. At about 10.45 PM, near place ‘Bhutnath Bridge’ the police party noticed a person coming from footpath side carrying a bag in his hand. On noticing the presence of police party, the said person turned back and tried to run away from the spot after throwing the bag carried by him on the ground. The police party apprehended the said person, i.e. the appellant. On inquiry, appellant disclosed his name as Noop Ram. He, however, could not satisfactorily explain his conduct regarding getting rid of bag carried by him. Thus, the police party entertained suspicion against him. (PW-7) C. Mahesh Kumar sent to bring some independent witness, but he failed to procure any such witness. (PW-8) HC Jamal Deen then associated (PW-6) HHC Shyam Dass and (PW-7) C. Mahesh Kumar as witnesses and the bag of the appellant was searched in which another green coloured carry bag was found tied with a knot. On opening of said bag, stick shaped black coloured substance was found wrapped in wrapper, which was discovered to be the contraband i.e. Charas. On weighing, the recovered Charas was found to be 1 Kg. 600 Grams. The recovered Charas was again placed in green carry bag along with polythene wrapper and were put inside the carry bag, which further was placed in a cloth parcel and such parcel was sealed by nine seals carrying impression ‘A’. Facsimile of seal impression was preserved on a separate piece of cloth Ext.PW-6/A. NCB form was filled by (PW-8) HC Jamal Deen. Recovery memo Ext.PW-6/B was prepared. “Rukka” Ext.PW-7/A after preparation was sent to Police Station by (PW-8) HC Jamal Deen through (PW-7) C. Mahesh Kumar for registration of FIR. Accordingly, FIR Ext.PW-7/B was registered. Appellant was formally arrested. (PW-8) HC Jamal Deen on his return to Police Station handed over the recovered contraband in sealed packet to SHO/Inspector Anil Kumar (PW-9) who re-sealed the packet with six seals carrying impression ‘D’. Facsimile of seal impression was separately preserved on a piece of cloth. NCB form was completed. The sealed contraband with necessary documents were handed over to MHC for safe deposit in “Malkhana”. On 30.12.2015, special report under Section 57 was sent to the Additional Superintendent of Police, Kullu, who after receipt of such report, directed the same to be placed in official records. On 06.01.2016 contraband was sent to SFSL, Junga for chemical analysis, which was opined to be Charas. The challan was prepared and the appellant was tried.
The prosecution examined total nine witnesses. PW-6 HHC Shyam Dass, PW-7 C. Mahesh Kumar and PW-8 HC Jamal Deen were examined as spot witnesses. PW-9 Inspector Anil Kumar was examined to prove the registration of FIR on receipt of “Rukka” Ext PW-7/A at Police Station and also to prove re-sealing process undertaken by the said witness before handing over the contraband for safe custody to MHC. HC Nirat Singh (PW-1) was examined to prove the receipt of special r
