Date of Decision: 19.9.2016 .
State of H.P. …Appella . nt P Versus Khekh Ram and another …Respondents
_____________________________________________________ ___H_____________ Coram Hon'ble Mr. Justice Rajiv Sharma, Judge. f
Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting? Yes o
____________________________________ r ____ t ___ _________________________ For the appellant: Mr. P.M. Negi, Deputy Advocate General. For the respondents: Mr Lak u shay Thakur, Advocate, for respondent No.1. M o r. Y.P.S. Dhaulta, Legal Aid Counsel for respondent No.2. -
___________________ C __________________________________________________ Per Rajiv Sharm a, Judge: h This appeal is instituted by the State against the impug g ned judgment dated 29.12.2010, rendered by the learned Spe i cial Judge, Kullu, H.P., in Sessions Trial No. 24/2010, whereby the H respondents, Khekh Ram and Govind Singh (hereinafter referred to as the "accused" for the convenience sake), who were charged with and tried for offences punishable under Sections 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, the Act) have been acquitted.
2 The case of the prosecution, in a nutshell, is that on
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19.10.2009, a police party, headed by PW8 Inspector/SHO Sanjeev Chauhan consisting of SI Tej Ram, HHC Kashmi Ram, PW1 HHC Hira Singh under the leadership of Ahmed Syed, the then Additional Superintendent of Police, Kullu, was on patrolling duty in an official .
vehicle bearing registration No. HP-03A-1281 being dri . ven P by Constable Tej Ram. On 20.10.2009 at about 4.00 A H .M. when the police party was present at a place known as Kelti Dhar, a vehicle bearing registration No.HP-01K-0805 was not f iced coming from
Shallang side. The said vehicle was on the way to Kullu. It was
signalled to stop. The driver of the vehicle stoopped the vehicle at once
and fled away from the spot toward r s a t n apple orchard on the lower
side of the road. The place was secluded one. The Investigating Officer
directed HHC Hira Singh o to buring the independent witnesses, who came back after ab C out 15-20 minutes and disclosed that due to odd hours, neither any independent witness nor any passer-by was available. A h s such, Inspector/SHO associated HHC Kashmi Ram and HHC g Hira Singh as witnesses and searched the vehicle bearing reg i istration No. HP-01K-0805 in their presence. On front seat of the H vehicle, a black bag was found and on checking, it was found containing sticks and chapatti shaped black substance. After smelling the substance, it was found to be charas. The police party also found from the dashboard of the vehicle registration certificate of the vehicle
in the name of PW2 Ses Ram and a bank pass book bearing account
No.3513 pertaining to Himachal Gramin Bank having been issued in
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the name of accused Khekh Ram. The charas weighed 14.750 kg. The charas was put in the same bag, which was sealed in a cloth parcel with nine seals of impression 'T'. Ruka was sent to the Police Station through HHC Hira Singh for registration of the case. The .
driver who fled away from the spot was stated to be having stout P built, tall and aged about 30-35 years. He was described as Khekh R . am. On 20.10.2009, the owner of the vehicle Ses Ram was inte H rrogated, who disclosed that on 3.8.2009 he had sold vehicle N f o. HP-01K-0805 to accused Govind Singh. On 20.10.2009, accused Govind Singh was also interrogated who disclosed that on t 1 9.1o0.2009, his vehicle was taken by accused Khekh Ram for s r ome personal work. Khekh Ram was searched by the police par u ty in his house, but he was not found there. On 21.10.2009 he was arrested from Garsa while driving TATA SPACIO vehicle be C aring o registration No.HP-01K-1672. On 6.3.2010, the accused Go vind Singh was also arrested. Thus, the accused persons we h re booked for the offences punishable under Sections 20 and 2 g 9 of the Act. The matter was investigated and the challan was put i up in the trial court after completing all codal formalities. H 3 The prosecution examined as many as 8 witnesses, in all, to prove its case against the accused persons. Statements of the accused persons under Section 313 Cr. P.C. were recorded, in which they pleaded that they were falsely implicated. The trial court
acquitted the accused persons vide impugned judgment dated
29.12.2010. Hence, the present appeal.
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4 Mr. P.M. Negi, learned Deputy Advocate General appearing for the appellant-State, has vehemently argued that the prosecution has proved its case against the accused persons beyond reasonable doubt. .
5 M/s Lakshay Thakur and Y.P.S. Dhaulta, . lea P rned Advocates, have supported the impugned judgment dated H 29.12.2010. 6 We have heard learned counsel for the p arties and have gone through the impugned judgment and record m f eticulously.
7 PW1 HHC Hira Singh testifie d o that on 19.10.2009 at about 10.25 P.M., police party headed t by SHO Police Station Kullu, Sanjeev Chauhan, went on patrolli r ng duty. After sometime, Ahmad Syed, the then Additional Supe u rintendent of Police, Kullu, also joined the police party as Incharge. On 20.10.2009 at about 4.00 A.M. when the police party re C ached o at a place known as Kelti Dhar in official vehicle No. HP- 03A-1281, a Maruti Alto Car was noticed coming towards the police party. The SHO signalled the vehicle to stop. The driver g stopp h ed the vehicle at a distance of about 15-20 yards from the pol i ice party and fled away from the spot towards the orchard on the H downside of the road. The police party tried to chase the driver with the help of search lights, but he could not be nabbed. Thereafter, he was deputed by SHO to bring local witnesses. No independent witness was available on the spot as it was early hour of the morning.
Thereafter, the vehicle was searched. During search, contraband was
recovered from the front seat of the vehicle and registration certificate
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and bank passbook of Gramin Bank issued in the name of accused Khekh Ram were also recovered from the dashboard of the vehicle. The charas weighed 14.750 kg. The sealing proceedings were completed on the spot. The case property i.e. Alto Car bearing .
registration No. HP-01K-0805 along with its key, RC and pass b P ook, was taken into possession vide memo, Ext.PW1/A. He alon . g with HHC Kashmi Ram and SI Tej Ram signed the recov H ery memo as witnesses. In his cross-examination, he depose f d t hat the driver of the vehicle fled away from the spot befor e o the police party reached near the vehicle. He had seen him from his back side. He volunteered that he had also seen his side face from r a di t stance of about 40-50 yards.
8. PW2, Ses Ram, tes u tified that on 13.8.2009 he sold vehicle bearing registration No. HP-01K-0805 to accused Govind Singh.
9. PW3, H C C Har o bans Singh, proved on record copy of special report, Ext.PW3/ A. 10. h PW4, HC Manoj Kumari, testified that on 20.10.2009 since g no senior officer was present in the Police Station, she was offi i ciating as SHO-cum-MHC, Police Station, Kullu. On 20.10.2009, H at about 6.55 A.M., HHC Hira Singh brought Ruka to Police Station, on the basis of which, she recorded FIR, Ext.PW4/A. On the same day, at about 5.30 P.M., Inspector/SHO Sanjeev Chauhan deposited with her a parcel, Ext.P1, sealed with 9 seals of impression "T" along
with sample seal "T", NCB form in triplicate, photocopy of seizure
memo and vehicle bearing registration No. HP-01K-0805 along
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with its keys. She duly entered all the above articles in the relevant register No.19 at Sr. No.216. On 21.10.2009, she handed over parcel, Ext.P1 along with sample seal "T", NCB form in triplicate, photocopy of seizure memo, photocopy of FIR and docket to Constable Kishan for .
being deposited at SFSL Junga vide R.C. No.171/2009, Ext.PW P 4/C, who after depositing the same at SFSL Junga handed over the . R.C. to her. H
11. PW5, Constable Kishan Chand, testifie f d th at he had taken the case property to SFSL Junga.
12. PW6, Constable Narender t K umoar, proved on record rapats, Ext.PW6/A, Ext.PW6/B and r Ext.PW6/C.
13 PW7, Kapil Sharm u a, Assistant Chemical Examiner, NDPS Division, SFSL Junga, pr o oved on record chemical examination report, Ext.PA. In his cross-examination, he deposed that the case property was received by him C from Constable Kishan Lal.
14. h PW8 , Sanjeev Chauhan is material witness. He deposed that h g e was posted as SHO, Police Station, Kullu in the month of Oct i ober, 2009. He deposed the manner in which the vehicle bearing H registration No. HP-01K-0805 was intercepted at Kelti Dhar on 20.10.2009 at about 4.00 A.M. According to him, he deputed HHC Hira Singh to bring independent witness from nearby locality, who after 15-20 minutes returned back to spot and apprised him that no
independent witness was available. Thereafter, he associated HHC
Hira Singh, HHC Kashmi Ram and SI Tej Ram as witnesses. During
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search of the vehicle, the charas weighing 14.750 kg was found on the front seat of the vehicle. On opening dashboard of the vehicle, pass book bearing account No.3513 of Himachal Gramin Bank issued in the name of accused Khekh Ram and registration certificate of the .
vehicle were also found. Sealing proceedings were completed on P the spot. The case property, i.e. contraband, Alto Car along wit . h R.C., keys and bank pass-book, was taken into possession H vide memo, Ext.PW1/A. Thereafter, he prepared the ruka, Ext. f PW 8/A and handed over the same to HHC Hira Singh for be ing o taken to Police Station Kullu for registration of the case. During investigation, Ses Ram disclosed to the police that he had so r ld t his vehicle bearing registration
No.HP-01K-0805 to accused Govind Singh by way of an affidavit.
Accused Govind Singh dis o closeud to the police that accused Khekh Ram had taken the said C vehicle from him to bring his wife from Anni. On 21.10.2009, accused Khekh Ram was arrested when he was coming from Garsa h road vide memo Ext.PW1/C. In the month of March 2010, accus g ed Govind Singh was arrested vide memo, Ext.PW8/G. In his cro i ss-examination conducted by learned defence counsel for accused H Khekh Ram, he deposed that when the police party alighted from the police vehicle, driver of vehicle No. HP-01K-0805 fled away from the spot and jumped towards dhank (gorge) on lower side of the road. He also chased him on the road. He denied the suggestion that no bag
was recovered from vehicle No. HP-01K-0805. In his cross-
examination conducted by learned defence counsel for accused Govind
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Singh, he denied the suggestion that he forced the accused Govind Singh to depose against accused Khekh Ram and when he refused to obey, he falsely implicated him in this case. Whatever was disclosed by accused Govind Singh and Ses Ram, it was recorded in the zimini .
orders. P
15. What emerges from appraisal of the statements . of the prosecution witnesses is that on 20.10.2009 at abo H ut 4.00 A.M., when the police party was on patrolling duty at a p f lac e known as Kelti Dhar in an official vehicle No. HP-03A-1281, a Maruti Alto Car bearing registration No. HP-01K-0805 being drive n oby accused Khekh Ram was signalled to stop. On seeing the r po t lice party, he at once stopped the vehicle and ran away from u the spot towards the orchard downside the road. The police part o y tried to chase him with the help of search lights, but he could C not be nabbed. PW8, Investigating Officer directed HHC Hira Singh to bring the independent witnesses, who came back after about h 15-20 minutes and apprised him that due to odd hours and g the place being secluded one, no independent witness was ava i ilable. As such, PW8 Investigating Officer, associated HHC Kashmi H Ram and HHC Hira Singh as witnesses and searched the vehicle bearing registration No. HP-01K-0805 in their presence. On search, a black bag was found on the front seat of the vehicle and it was found containing sticks and chapatti shaped black substance, which after
smelling was found to be charas. The registration certificate of the vehicle in
the name of one Ses Ram and a pass book bearing account No.3513
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pertaining to Himachal Gramin Bank having been issued in the name of accused Khekh Ram were also found in the dashboard of the vehicle. The charas weighed 14.750 kg. The vehicle was owned by accused Govind Singh. .
16. Mr. Lakshay Thakur, learned Advocate, has vehem P ently argued that the prosecution has failed to connect the accused . Khekh Ram with the alleged offence. He has contended that a H ccused Khekh Ram was booked in the present case merely on th f e b asis of his bank pass-book allegedly found in the dash board of the vehicle bearing registration No. HP-01K-0805. He has a t lso aorgued that in the ruka, Ext.PW8/A the name of the accused r Khekh Ram was not mentioned.
17. It has come in the u cross-examination of PW1 HHC Hira Singh that the accused K o hekh Ram fled away from the spot before the police party reache C d near the vehicle. When search lights were thrown on him, the poli ce party noticed his back portion. He had also seen him from h h is back side. He had also seen his side face from a distance of ab g out 40-50 yards. The pass book bearing account No.3513 per i taining to Himachal Gramin Bank having been issued in the name H of accused Khekh Ram was also found in the dashboard of the vehicle. 18. We have gone through the ruka, Ext.PW8/A. Towards end of Ruka, Ext.PW8/A, the name of the accused has been specifically mentioned from whom the charas weighing 14.750 kg was
recovered. The learned trial court should have read the contents of
the Ruka, Ext.PW8/A in its entirety. Even in the NCB form also, name
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of the accused Khekh Ram has been mentioned.
19. Mr. Lakshay Thakur, learned Advocate has also vehemently contended that the accused Khekh Ram has been falsely implicated by the police personnel by planting the contraband, but .
there is no merit in his contention taking into consideration the P huge quantity of charas (14.750 kg). Moreover, he has not proved on . record that there was any animosity between Khekh Ram a H nd the police personnel, who intercepted the vehicle. Even the f ba nk pass-book of the accused Khekh Ram was also found in the dashboard of the vehicle. The accused Khekh Ram also feign edo ignorance when he was put question No.7 while recording r his t statement under Section 313 Cr.P.C. that Alto Car No. H u P-01K-0805 was searched by PW8 Inspector Sanjeev Chauha o n and during search a black and red colour bag, on which word C "Sports" was printed, was found on the front seat of the vehicle. A pass book bearing account No.3513 of Himachal Gramin Ba h nk issued in his name, in which about Rs. 1,79,000/- were found g to have been deposited upto 3.10.2009 was found in the das i hboard of the vehicle. He should have given some explanation how H his bank pass-book was found in Alto Car No. HP-01K-0805. There was no occasion for the police personnel to falsely implicate him. Therefore, the prosecution has proved beyond reasonable doubt that it was the accused Khekh Ram, who was driving the vehicle bearing
registration No. HP-01K-0805, on 20.10.2009 at 4.00 A.M., from
which the charas weighing 14.750 kg and bank pass-book bearing
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account No.3513 pertaining to Himachal Gramin Bank issued in his name were recovered.
20. It is reiterated that the name of the accused Khekh Ram was mentioned in the Ruka as well as in the NCB form. The learned .
trial court has not correctly appreciated the Ruka, Ext.PW8/A w . h P erein name of Khekh Ram has been specifically mentioned. Though, the learned trial court has observed that Ahmad Syed, the th H en Additional
Superintendent of Police, Kullu, was not exami f ned , but it is the
quality of the evidence and not the quanti ty o of the evidence which is required to be judged by the Court to place credence on the statement.
21. Now, as far as the accus r ed G t ovind Singh is concerned, the prosecution has failed to prove the case against him. What accused Govind Singh has told th o e poliuce during interrogation is that accused Khekh Ram had ta C ken his vehicle bearing registration No. HP-01K-0805 to bring his wife from Anni on 19.10.2009. Thereafter, he moved an applicat h ion under Section 457 Cr.P.C. for the release of the vehicle. Moreo g ver, the incident is dated 20.10.2009 and Govind Singh was arr i ested on 19.3.2010 H 22. Accordingly, the appeal is partly allowed and the impugned judgment dated 29.12.2010, rendered by the learned Special Judge, Kullu, H.P., in Sessions Trial No. 24/2010, is set aside to the extent it acquitted the accused Khekh Ram under Sections 20
and 29 of the Act. Accordingly, accused Khekh Ram is convicted for
the offences punishable under Section 20 of the Act. He be produced
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in the Court to be heard on the quantum of sentence on 22.9.2016. The bail bonds are cancelled. The acquittal of accused Govind Singh is upheld.
22. The registry is directed to prepare the production warrant. .
P
(Rajiv Sharma . ) Judge
H
(Suresh f wa r Thakur) Judge September 19, 2016
*pankaj* o rt Co
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