High Court of H.P.18

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Appeal No. 124 of 2017

Reserved on: 30.04.2019

Date of Decision: 4.7.2019

_________________________________________________________

Pala Singh & others …Appellants.

Versus

State of H.P. ...Respondent.

Coram:

The Hon’ble Mr. Justice Dharam Chand Chaudhary, Judge.

The Hon’ble Mr. Justice Vivek Singh Thakur, Judge.

Whether approved for reporting?

1

. Yes.

For the Appellants: Mr. Manoj Pathak,

Advocate.

For the Respondent: Mr. Vikas Rathore, Mr.

Narender Guleria, Additional Advocate

Generals with Mr. J.S. Guleria, Mr.Kunal

Thakur, Dy. Advocate Generals &Mr.

Sunny Dhatwalia, Assistant Advocate

General.

Vivek Singh Thakur, Judge.

Present appeal has been preferred by convicts-

appellants against the judgment dated 1.7.2016, passed by

Additional Sessions Judge-cum-Special Judge (CBI), Shimla,

H.P., Camp at Theog, in Sessions Trial No.6-T/7 of 2013/12,

titled as State of Himachal Pradesh vs. Pala Singh & others,

1Whether reporters of the local papers may be allowed to see the judgment?

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in case FIR No. 49/2012, dated 6.4.2012, registered at

Police Station Theog, District Shimla, H.P., whereby

convicts/appellants Pala Singh and Raghubir Singh have

been convicted for commission of offence under Section 20

of the Narcotic Drugs and Psychotropic Substance Act, 1985

(in short NDPS Act)whereas accused Narayan Singh was

acquitted under Section 29 of the NDPS Act, by extending

benefit of doubt in his favour.

2. The convicts/appellants have been sentenced to

undergo rigorous imprisonment for a period of 10 years

each and to pay fine in the sum of Rs.1,00,000/- each, for

commission of offence under Section 20 of NDPS Act and in

default of payment of fine, to undergo further simple

imprisonment for a period of one year each.

3. The State has not preferred any appeal against

acquittal of co-accused Narayan Singh, whereas

convicts/appellants Pala Singh and Raghubir Singh have

assailed their conviction and sentence imposed upon them

in present appeal.

4. We have heard Mr.Manoj Pathak, Advocate for

the convicts/appellants and Mr. Vikas Rathore, learned

Additional Advocate General for the State and have also

gone through the record.

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5. The prosecution case, in brief, is that police party

headed by PW-12 Inspector Baldev Thakur, consisting of PW-

13 ASI Karam Singh, PW-3 Constable Manoj Kumar, PW-4

Constable Mohd. Mehmood, Constable Satish and Constable

Rajesh, had left the Police Station in official vehicle being

driven by Constable Rajesh, for patrolling towards Sainj-

Balag-Kuthar etc., after recording D.D. entry No.7(A)

Ext.PW6/C at 7.00 a.m. on 6.4.2012 and at about 10.15

a.m., it was present at Sewag curve (Mor), on a road from

Balag to Kuthar along with Constable Naresh Kumar and

Constable Anil Kumar, who were accompanying this police

party from Police Post Chhaila. At that time, a white

coloured car bearing registration No. PB-76-0430 (Indigo),

occupied by driver Pala Singh and his co-passenger sitting

on front seat (co-accused Raghubir Singh), came from

Kuthar side and on inquiry, they disclosed their names and

addresses and by that time, PW-7 Prem Pandey came in his

pick-up on the spot and PW-8 Moti Ram also came on the

spot by chance, who were associated as witnesses by the

Investigating Officer, for checking the vehicle, wherein

Raghubir Singh (accused) was sitting with a bag in his lap.

During checking, 6 packets were recovered from this bag,

which were containing contraband therein, which was

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identified as cannabis. Thereafter, on checking of right side

dash board of the vehicle, 11 packets containing charas

were also recovered. On weighing, total recovered charas

was found to be 8.200 kg. The recovered contraband was

repacked in the bag and sealed with seal impression ‘A’ and

thereafter, taken into possession vide memo Ext.PW7/A. The

NCB-1 form Ext.PW12/A was filled in triplicate and sample

seal impression was also taken on a separate cloth

Ext.PW7/C and the seal was handed over to PW-7 Prem

Pandey. The sample seal impression and parcel were signed

by the witnesses i.e. PW-7 Prem Pandey, PW-8 Moti Ram and

PW-13 ASI Karam Singh and also by the convicts/appellants.

Thereafter, rukka Ext.PW12/B was prepared and sent to

Police Station through PW-4 Constable Mohd. Mehmood,

whereupon ASI Sanjeev Kumar had registered the F.I.R.

Ext.PW2/A and had handed over the copy thereof to PW-4

Constable Mohd. Mehmood, for delivering the same to the

Investigating Officer (PW-12). During investigation, site plan

Ext.PW12/C was also prepared and accused were arrested

vide memos Ext.PW3/B-1 and Ext.PW3/B-2 and thereafter,

Jamatalashi/ personal search of the convicts/appellants was

conducted vide memos Ext.PW12/D and Ext.PW12/E. On

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8.4.2012, the case file was handed over to PW-13 ASI Karam

Singh for further investigation.

6. The vehicle (Indigo Car) being used by the

convicts/appellants was also impounded. The car alongwith

key as well as relevant documents were deposited by PW-12

Baldev Thakur in the Malkhana by handing over the same

to PW-6 MHC Sunil Kumar, who had entered it at serial

No.581 of the Malkhana Register.

7. On 7.4.2012, PW-6 MHC Sunil Kumar had sent

parcel to State Forensic Science Laboratory, Junga through

PW-4 Mohd. Mehmood along with documents vide R.C.

No.58/12 (Ext.PW6/B). The parcel was delivered in State

Forensic Science Laboratory, Junga on the very same day.

Respective extracts of Malkhana Register and R.C. are

Ext.PW6/A and Ext.PW6/B.

8. It is further case of the prosecution that during

interrogation, convicts/appellants had disclosed that they

had purchased the charas from co-accused Narayan Singh,

whereupon, house of Narayan Singh was raided and he was

arrested. On the basis of call details of mobile phones being

used by convicts/appellants and co-accused Narayan Singh

and location of tower of these phones in the concerned

area, it was found that co-accused Narayan Singh had

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provided the charas to convicts/appellants. During

investigation, it was found that the accused were also using

telephones, which were not in their names, but in the names

of someone else. After procuring details of the telephones

from the Nodal Officers of the concerned companies,

statements of the persons, in whose names mobile

connections were issued, were also recorded.

9. On 7.4.2012, special report Ext.PW11/A was

prepared which was delivered to the Sub-Divisional Police

Officer, Theog on the very same day and the said report,

after making endorsement by Sub-Divisional Police Officer,

was handed over to PW-11 HC Man Dev, who had entered

the said report in the concerned register. Extract of the

register is Ext.PW11/B. After receiving chemical analysis

report Ext.PX, from State Forensic Science Laboratory,

Junga, challan was prepared and presented in the Court.

10. On finding prima facie complicity of accused

persons in commission of offence, convicts/appellants were

charged under Section 20 of the NDPS Act, whereas co-

accused Narayan Singh was charged under Section 29 of

the NDPS Act. The accused persons had pleaded not guilty

and thus, were subjected to trial.

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11. The prosecution had examined 19 witnesses to

substantiate its case. Whereas, after recording their

statements under Section 313 Cr.P.C., the

convicts/appellants and their co-accused Narayan Singh had

opted not to lead any evidence in defence. On completion

of trial, as detailed supra, the trial Court has convicted the

convicts/appellants and has acquitted co-accused Narayan

Singh.

12. As the respondent/State has not filed any appeal

against the acquittal of co-accused Narayan Singh, the

witnesses examined to prove his complicity in the offence

committed by the convicts/appellants, i.e. PW-5 Ms. Sapna

Devi, PW-10 Devinder Verma and PW-14 Smt. Manjeet Kaur,

are not relevant.

13. PW-9 Amrit Pal Singh is owner of the car being

used by convicts/appellants. He has verified that

convict/appellant Pala Singh was the person employed by

him as driver and he was in-charge of the vehicle at

relevant point of time. PW-16 Krishana Nand had received

the parcel at State Forensic Science Laboratory, Junga and

had made entry in the crime Register at serial No.481,

extract whereof is Ext.PW16/A. Thereafter, on receiving the

result and case property, he had handed over it to

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Constable Pardeep, who had deposited the same in the

malkhana.

14. The independent witnesses in present case i.e.

PW-7 Prem Pandey and PW-8 Moti Ram, in their deposition

before the Court, were declared hostile for resiling from

their previous statements recorded under Section 161

Cr.P.C. Therefore, when independent witnesses have

become hostile, statements of official/police witnesses are

to be scrutinized with care and caution.

15. Learned counsel for the convicts/appellants has

disputed correctness of the impugned judgment, on the

ground that independent witnesses i.e. PW-7 Prem Pandey

and PW-8 Moti Ram have not supported the prosecution

case and there are major contradictions and discrepancies

in the testimonies of official witnesses, having effect on the

genesis of the prosecution story. It is contended on behalf of

the convicts/appellants that from the evidence on record, it

appears that it is a case of prior information, but the

Investigating Officer has failed to follow mandatory

provisions of NDPS Act, required to be followed in such a

case and further that the Investigating Officer PW-12 Baldev

Thakur has not prepared any document on the spot. It is

also contended that in the arrest memos Ext.PW3/B-1 and

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Ext.PW3/B-2, time of arrest of accused persons has been

shown as 2.00 p.m. and in these documents, quantity of

recovered charas i.e. words “8.200 grams” have been

mentioned in printed form after typing it on the computer.

Whereas, it is admitted case of the prosecution that police

party was not having any computer on the spot and as per

prosecution story, convicts/appellants were apprehended at

10.15 a.m., rukka was prepared at 12.15 p.m. and

thereafter, police party remained on the spot till 4.00 p.m.

and had reached in the Police Station at 7.00 p.m. In these

circumstances, there was no possibility of typing out

quantity of recovered charas i.e. 8.200 kg in Ext.PW3/B-1

and Ext.PW3/B-2 on the spot, but is typed on these

documents, which indicates that the said documents were

not prepared on the spot at the time of alleged arrest of

convicts/appellants at 2.00 p.m., which creates doubt on the

fairness of investigation, rendering the prosecution story

doubtful.

16. It is further contended on behalf of the

convicts/appellants that in R.C. Ext.PW6/B, date has been

mentioned as 7.6.2012 instead of 7.4.2012 and there is no

mention of sending sample seal impression and NCB form

alongwith recovered contraband and further that PW4

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Constable Mohd. Mehmood has stated that rukka is in the

handwriting of Karam Singh whereas Investigating Officer at

that time was PW12 Inspector Baldev Singh. It is further

contended that Investigating Officer has not prepared any

document on the spot, which again creates doubt about

presence of PW-12 Baldev Thakur on the spot. In the light of

submissions made hereinbefore, it is canvassed that the

convicts/appellants are entitled for benefit of doubt.

17. Lastly, learned counsel for the respondent has

also raised the issue that in the present case, complainant

as well as Investigating Officer is one and same Officer and

therefore, keeping in view the pronouncement of Apex Court

in Mohan Lal vs. State of Punjab reported in AIR 2018

SC 3853, the respondents are entitled for acquittal.

18. Learned Additional Advocate General for the

State has supported the impugned judgment, for the

reasons assigned therein with further submission that

verdict in Mohan Lal’s case is not applicable in present

case.

19. The plea raised on behalf of the

convicts/appellants, that it is a case of prior information,

does not bear out from the record, as the police party had

left the Police Station at 7.00 a.m., for patrolling in the area

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of Sainj-Balag-Kuthar etc., after recording it in Daily Station

diary vide Ext.PW6/C. During cross-examination to PW-6 HC

Sunil Kumar, who has proved this Daily Diary Entry on

record, the correctness of this document has not been

disputed, which amounts to admission of the said

document. Further, no such suggestion has ever been put to

Investigating Officers PW-12 Baldev Thakur and PW-13 ASI

Karam Chand or to PW-3 Constable Manoj Kumar and PW-4

Constable Mohd. Mehmood. Therefore, plea raised by the

convicts/appellants, at this stage, regarding prior

information, is without any basis and is not sustainable.

20. The ground taken by the convicts/appellants that

the Investigating Officer PW-12 Baldev Thakur has not

prepared any document himself or on the spot, is also not

having any bearing on the merits of the case as it has come

in the statements of officials witnesses that some of the

documents were prepared by the Investigating Officer

himself and some of the documents were prepared/reduced

into writing by other police officials including PW-13 ASI

Karam Singh, under the dictation of PW-12 Baldev Thakur.

No doubt, the arrest memos Ext.PW3/B-1 and Ext.PW3/B-2

contain the quantity of recovered contraband in printed

form, whereas the convicts/appellants were arrested on the

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spot at 2.00 p.m. and at the spot, there was no computer

available with the police and it indicates that these memos

were not prepared on the spot, but later on, in the Police

Station. But this fact is also of no help to the

convicts/appellants, as PW-12 Baldev Thakur, in his cross-

examination has stated that no document was prepared

regarding information given to the relatives of the accused

persons and they were not having computer with them on

the spot and both the arrest memos, having description of

recovered contraband, were typed in the computer.

Similarly, PW-13 Karam Singh, in his cross-examination, has

also stated that no arrest memos were prepared on the

spot, but these were prepared in the Police Station.

However, the arrest information was given from the spot.

Meaning thereby, it is a case of the prosecution that these

arrest memos were prepared in the Police Station. The

convicts/appellants were arrested on the spot, but their

arrest memos were prepared in the Police Station and their

personal search, after arrest, was conducted in the Police

Station itself, which is evident from the memos of search

(Jamatalashi) Ext.PW12/D and Ext.PW1/E, proved on record

by PW-17 HC Satish Kumar. The preparation of arrest memos

Ext.PW3/B-1 and Ext.PW3/B-2 not on the spot but in Police

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Station may be a lapse on the part of Investigating Officer,

who should have prepared the arrest memos on the spot,

but this lapse does not falsifies the prosecution case and it

does not have any effect on the veracity of the prosecution

witnesses. The fact that these memos were prepared in the

Police Station, has been disclosed by the prosecution

witnesses in their deposition. Therefore, this act on the part

of investigation, though amounts to faulty investigation, but

is of no help to the convicts/appellants, as no prejudice, to

have been caused to them on this count is apparent. The

plea of convicts/appellants that quantity of recovered

contraband has been typed in Ext.PW3/B-1 and Ext.PW3/B-

2, is also not fatal to the prosecution, for the reason that

said typing out of quantity stands satisfactorily explained,

as discussed above and therefore, it also does not extend

any benefit to the convicts/appellants, rather by telling truth

official witnesses have established their creditworthiness so

as to inspire confidence in prosecution story.

21. It is a fact that independent witnesses PW-7 Prem

Pandey and PW-8 Moti Ram have been declared hostile for

resiling from their previous statements made under Section

161 Cr.PC. But it is settled law that testimony of hostile

witness cannot be brushed aside only on the ground that

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the witness has been declared hostile. Credible part of the

hostile witness, which is acceptable in the facts and

circumstances of the case and is duly corroborated by other

reliable material on record, can be taken into consideration

in favour of either party. Scrutiny of these witnesses

indicates that though they have not supported the

prosecution case in totality, but they have admitted

presence of police party along with two persons on the spot

on the given date and time and also recovery of charas from

the Indigo Car bearing No.PB-76-0430. They have also

admitted their presence on the spot as indicated in

photographs Ext.PW3/A-1 to Ext.PW3/A-7. PW-7 Prem

Pandey has corroborated the prosecution case regarding his

appearance on the spot in his vehicle and his association

during search and seizure procedure. Similarly, PW-8 Moti

Ram has also corroborated the prosecution story regarding

the manner of his presence on the spot. Though PW-7 Prem

Pandey has expressed his ignorance about the presence of

PW-8 Moti Ram on the spot, however, he has admitted that

he along with Moti Ram is visible in the photographs of the

spot. PW8 Moti Ram has also admitted his presence along

with PW-7 on the spot. These witnesses have also admitted

their signatures on the seizure memos Ext.PW7/A and

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Ext.PW7/B. PW-8 Moti Ram has admitted that packets were

recovered by the police from the vehicle bearing registration

No.PB-76-0430 and has also admitted that recovered

packets were weighed in their presence, but he did not

remember the quantity of recovered charas. The evidence

as a whole, of these independent witnesses, inspire

confidence about truthfulness of the prosecution case.

22. The prosecution has also examined owner of the

vehicle bearing registration No.PB-76-0430 i.e. Amrit Pal

Singh as PW-9. In his examination-in-chief, he has clearly

stated that he had engaged convict/appellant Pala Singh as

a driver, who had borrowed the vehicle for taking his family

to Sri Naina Devi Ji Temple and Anandpur Sahib and on

8.4.2012, he came to know about impounding of his vehicle

by the police, whereupon he came to Theog along with his

father and had talked with convict/appellant Pala Singh in

the Police Station, Theog, when he was in police custody

there and Pala Singh had disclosed that he had brought the

vehicle to Theog and was caught carrying charas in it. In his

cross-examination, his veracity remained unshaken. He has

proved on record the certificate Ext.PW9/A, issued by him,

wherein he had certified that Pala Singh was engaged by

him as a driver on the vehicle involved in the incident.

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23. In rukka Ext.PW12/B, against the column of the

date thereon, the date has been mentioned as 7.6.2012, but

at the same time, on this document, there is a seal of Police

Station, Theog, mentioning R.C. No.58/12 with the date

7.4.2012 and also under the signatures of the person

issuing it, date has been mentioned as 7.4.2012. On its back

side, ‘In-charge of Case Receipt and Dispatch Branch’, Office

of Director, State Forensic Science Laboratory, Junga has

acknowledged the receipt of articles as per this R.C. on

7.4.2012. PW-16 SI Krishna Nand, who was Incharge Crime

Branch SFSL, Junga in his deposition, has stated that PW-4

Mohd. Mehmood had brought one parcel on 7.4.2012, which

was received by him on the same date. PW-4 Mohd.

Mehmood has also corroborated the said date. Therefore,

mention of wrong date at one place in the R.C. does not

have any effect on the veracity of the prosecution case.

24. PW-16 Krishna Nand has also proved on record

the receipt of result from State Forensic Science Laboratory,

Junga on 24.4.2012 along with case property and handing

over of the same to Constable Pardeep of Police Station,

Theog, after making entries in Crime Register maintained by

the officials posted in SFSL and he has proved the abstract

of Crime Register Ext.PW16./A. The report of State Forensic

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Science Laboratory has been proved on record as Ext.PX,

wherein it is recorded that the case property was received in

the Laboratory on 7.4.2012 and the quantity thereof was

found 8.182 kg and on chemical analysis, the same was

found to be sample of charas.

25. The plea that respondents are entitled for

acquittal in view of ratio of law settled in Mohan Lal’s case

supra is not available to the respondents as the Apex Court

in case Varinder Kumar vs. State of Himachal Pradesh

reported in 2019 SCC Online SC 170 has clarified that the

judgment passed in Mohan Lal’s case shall not affect the

status of cases instituted/filed prior to the said judgment,

rather this judgment shall have the prospective

applicability/effect and all pending criminal prosecutions,

trials and appeals prior to the law laid down in Mohan Lal’s

case supra shall continue to be governed by the individual

facts of the case.

26. Except, points discussed hereinabove, no other

point has been urged so as to doubt the veracity of official

witness. We also do not find any material contradiction,

discrepancy or improvement in evidence of spot official

witnesses, PW3 C.Manoj, PW4 Mahmood, PW12 Inspector

baldev Singh and PW13 Karam Chand and also other

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witnesses so as to doubt on the prosecution story.

Acceptable portion of statements of hostile independent

witnesses is also tilting the balance in favour of prosecution

case.

27. As discussed hereinabove, we find no merit in

points raised on behalf of appellants. Therefore, there is no

illegality, irregularity or perversity in convicting and

sentencing the appellants. Therefore, no ground for

interference in conviction and sentence imposed on

appellants is made out. Accordingly, the appeal is

dismissed. Record be sent back to the learned trial Court.

(Dharam Chand Chaudhary),

Judge.

(Vivek Singh Thakur),

July 4,2019 Judge.

(rishi)

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