High Court of H.P.IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Criminal Appeal No.415 of 2017

Reserved on : 11.4.2019

Date of Decision : 2.5.2019

Tilak Raj ...Appellant.

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? Yes

1

For the Appellant :Mr. Virender Singh Rathore,

Advocate, as Legal Aid Counsel.

For the Respondent : Mr. Vikas Rathour, Mr. Narinder

Guleria, Additional Advocates

General, and Mr. Kunal Thakur &

Sunny Dhatwalia, Deputy

Advocates General.

Vivek Singh Thakur, Judge

Present appeal has been preferred by

accused-convict-appellant Tilak Raj against the judgment

dated 7.12.2016/13.12.2016, passed by learned Special

Judge, Chamba, Division Chamba, Himachal Pradesh, in

Sessions Trial No.27 of 2015, titled as State of Himachal

Pradesh v. Tilak Raj, whereby accused has been

convicted for committing an offence under Section 20(b)

1

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

::: Downloaded on - 04/10/2022 20:23:47 :::CIS

High Court of H.P.…2…

(ii)(c) of the Narcotic Drugs and Psychotropic Substances

Act, 1985 (hereinafter referred to as the NDPS Act) and

sentenced to undergo rigorous imprisonment for a period

of 12 years and to pay a fine of Rs.1,50,000/-, and to

undergo further simple imprisonment for a period of six

months in case of default of payment of fine.

2. We have heard learned counsel for the

accused, learned Additional Advocate General, and also

gone through the record.

3. In brief, case of the prosecution is that on

16.5.2015 at 2.15 p.m., a police party headed by HC

Kartar Singh (PW-13), consisting of Constable Surinder

Singh (PW-1), Constable Subhash Chand (PW-2) and

Constable Pawan Kumar (PW-3), left Police Post, Banikhet

for patrolling towards Bathri, Devi Dehra Bazaar, etc.,

District Chamba, alongwith Investigation Kit, Photography

and Videography Camera, Electronic Weighing Machine,

etc., after recording Rapt No.7 in Daily Diary Register

(Ex.PW-6/A) in Police Post Banikhet. From Banikhet to

Bathri, the police party travelled in HRTC Bus, wherefrom

they went on patrolling, on foot, to Devi Dehra Bazaar

and on the way challaned two vehicles under the Motor

Vehicles Act. At about 3.45 p.m., when the police party

was near Rock Garden Bridge, Devi Dehra and PW-13 HC

::: Downloaded on - 04/10/2022 20:23:47 :::CIS

High Court of H.P.…3…

Kartar Singh was talking with Pankaj Kumar (PW-4) and

Shashi Kumar (PW-5), a person appeared on the road

from the stairs of Jalpa Mata Temple, having a package

parcel of shawl in his hand. The said fellow got perplexed

on noticing the police on the road. On inquiry, the

accused disclosed his identity and address whereafter he

was also inquired about the material being carried by him

in the package parcel. After his reply that it contained his

personal belongings, PW-13 Kartar Singh asked him to

open it for checking. On opening of the package parcel

by the accused, a blue coloured carry bag, containing

therein an envelope of polythene, was found therein. In

the polythene envelope, black coloured solid stick shape

substance was found. Whereupon at about 4 p.m., PW-1

Surinder Singh was sent by the Investigating Officer PW-

13 HC Kartar Singh to the Police Post for bringing Drug

Detection Kit, who returned with the said kit at 5 p.m. On

checking the black coloured substance, with the help of

Drug Detection Kit, it was identified to be as Charas.

Thereafter, Identification Memo (Ex.PW-2/A) was

prepared, which was thumb impressed by the accused as

well as PW-2 Constable Subhash Chand, and independent

witnesses PW-4 Pankaj Kumar and PW-5 Shashi Kumar.

On weighing the recovered contraband, on electronic

::: Downloaded on - 04/10/2022 20:23:47 :::CIS

High Court of H.P.…4…

weighing machine, it was found to be 1.8 kgs. Thereafter,

the recovered Charas was again put in the bags in the

same manner as it was earlier and the same was taken

into possession, after sealing it in a parcel of cloth with

seal impression “S”. Sample of the seal was taken on a

piece of cloth (Ex.PW-2/D), whereupon the accused had

put his thumb impression and PW-2, PW-4 and PW-5 had

signed the same. Relevant columns of NCB Form (Ex.PW-

10/C) were also filled in triplicate and impression of the

seal was also taken on the NCB form. The seal, after use,

was handed over to PW-4 Pankaj Kumar. Shawl, which

was used for package parcel, was also taken into

possession. Seizure Memo (Ex.PW-2/E), duly thumb

impressed by the accused and signed by PW-2, PW-4 and

PW-5, was prepared on the spot. Thereafter, notice under

Section 50 of the NDPS Act (Ex.PW-2/B) was given to the

accused, whereby he was informed of his legal right for

opting his personal search before some Magistrate or

Gazetted Officer. As accused had claimed that he is

illiterate, meaning of “Gazetted Officer” and “Magistrate”

was also explained to him. However, accused opted for

his personal search by HC Kartar Singh. The accused had

put thumb impression on the notice (Ex.PW-2/B) and PW-

3 and PW-4 had also signed the same. Before conducting

::: Downloaded on - 04/10/2022 20:23:47 :::CIS

High Court of H.P.…5…

the search of the accused, the police officials and the

witnesses also gave their personal search to accused vide

memo (Ex.PW-2/C), which was signed by PW-2, PW-4 &

PW-5, and thumb impressed by the accused.

4. During personal search of the accused, no

suspicious substance/article was recovered, except the

clothes worn by him and his personal articles. The

aforesaid search and seizure process was also

photographed and videographed by PW-1 Constable

Surinder Singh with the help of official camera, and such

photographs are Ex.PW-1/A-1 to Ex.PW-1/A-8. The

aforesaid details were reduced into writing in Ruka

(Ex.PW-10/A), which was sent to Police Station, Dalhousie,

through PW-1 Constable Surinder Singh, at about 7.55

p.m. and carbon copy of the Ruka (Ex.PW-9/A) was also

sent from the spot to the Superintendent of Police,

District Chamba, through PW-2 Constable Pawan Kumar.

5. It is further case of the prosecution that PW-1

Constable Surinder Singh had handed over the Ruka to

PW-10 ASI Hans Raj, who, on the basis of the same, after

registering FIR No.51/15, dated 16.5.2015 (Ex.PW-10/A)

and thereafter after making endorsement (Ex.PW-10/B)

on the ruka, regarding registration of FIR, had handed

over the case file to PW-1 to further hand it over to PW-13

::: Downloaded on - 04/10/2022 20:23:47 :::CIS

High Court of H.P.…6…

HC Kartar Singh. Copy of the ruka sent to the

Superintendent of Police, through PW-3, was seen by him

at his residence at 10 p.m. on 16.5.2015.

6. As per prosecution case, the accused was

arrested at about 10.30 p.m. on 16.5.2015, after

informing him vide memo of information of arrest (Ex.PW-

2F), whereupon the accused had put his thumb

impression and had expressed his desire to inform his

real sister Sudesh Rani on her mobile phone about his

arrest. After giving information, as desired by the

accused, which was endorsed upon memo Ex.PW2/F,

whereupon the accused had put his thumb impression

and was witnessed by PW-2 and PW-4. At the time of

arrest, personal search (Jamatalashi) of the accused was

also re-conducted and a memo (Ex.PW-2/G), duly

acknowledged by the accused and witnessed by PW-2 &

PW-4, was also prepared.

7. The accused alongwith the case property was

brought to Police Station, Dalhousie and case property

was handed over by HC Kartar Singh to PW-10 ASI Hans

Raj, who after resealing the same with seal ‘H’, in

presence of PW-8 Constable Lakish Kumar and

facsimileing the seal impression on NCB form and filling

its relevant columns, had handed over the case property

::: Downloaded on - 04/10/2022 20:23:47 :::CIS

High Court of H.P.…7…

alongwith documents to PW-11 MHC Deepak Kumar at

11.50 p.m. In this regard, DD entries No.43 (Ex.PW-7/A)

and 44 (Ex.PW-7/B) were also recorded, through PW-7

Constable Yogesh Gurang. PW-10 ASI Hans Raj also

prepared Resealing Certificate (Ex.PW-8/A) and handed

over the seal to PW-8 Constable Lakish Kumar. PW-13 HC

Kartar Singh had also deposited one Shawl (Ex.P-5) with

PW-11 at 11.30 p.m., which was entered by him at Sr.

No.99 of the Malkhana Register (Ex.PW-11/B). Deposit of

case property by PW-10 with PW-11 was also entered in

the Malkhana Register at Sr. No.100. The accused was

subjected to medical examination in Civil Hospital,

Dalhousie on 17.5.2015 and thereafter lodged in lock-up.

Recovered contraband (Ex.P-1) was sent to the State

Forensic Science Laboratory, Junga, for chemical analysis/

examination on 17.6.2015, through PW-8 Lakish Kumar,

vide RC No.54 (Ex.PW-11/C), dated 17.5.2015, who after

depositing the same with the FSL, on 18.5.2015, had

handed over receipt thereof to PW-11 Deepak Kumar.

The case property alongwith report of FSL (Ex.PX) was

brought to the Police Station by Constable Rajinder

Kumar.

8. During investigation, Site Map (Ex.PW-13/B)

was prepared and the statements of the witnesses under

::: Downloaded on - 04/10/2022 20:23:47 :::CIS

High Court of H.P.…8…

Section 161 of the Code of Criminal Procedure were also

recorded. Special Report (Ex.PW-9/B) was also prepared

by the Investigating Officer PW-13 HC Kartar Singh, which

was sent to the Superintendent of Police, Chamba,

District Chamba, through PW-3 Constable Pawan Kumar

on 18.5.2015, which was seen by the Superintendent of

Police in his office on the same day at 1 p.m. Thereafter,

copy of ruka (Ex.PW-9/A) and Special Report (Ex.PW-9/B)

were handed over by the Superintendent of Police to his

Assistant Reader HHC Rajesh Kumar (PW-9), who entered

the same in the Receipt Register at Sr. No.5399 & 5400.

9. On receipt of the report of the Chemical

Examiner and completion of investigation, PW-13 HC

Kartar Singh handed over the case file to PW-12 HC

Bhajan Singh, Incharge of Police Post, Banikhet, who

further handed it over to SI Bhupinder Singh, SHO, Police

Station, Dalhousie, who presented the challan in the

Court for trial.

10. Trial Court, having found a prima facie case

against the accused, charged him for having committed

an offence under Section 20(ii)(C) of the NDPS Act. The

accused pleaded not guilty to the charge and claimed

trial.

::: Downloaded on - 04/10/2022 20:23:47 :::CIS

High Court of H.P.…9…

11. To prove the case against the accused, the

prosecution has examined as many as 13 witnesses.

Statement of the accused under Section 313 of the Code

of Criminal Procedure was also recorded, in which he

pleaded innocence and false implication. No evidence in

defence was led.

12. On conclusion of the trial, the accused stands

convicted and sentenced, as aforesaid.

13. Learned counsel for the accused has

submitted that in the present case PW-4 Pankaj Kumar

and PW-5 Shashi Kumar are two independent witnesses,

but they have not lent support to the prosecution case by

resiling from their earlier statement and contrary to the

claim of the prosecution, they have categorically stated

that forms were filled in the shop and nothing was

recovered in their presence, which reflects that a false

case has been foisted upon the accused and he deserves

to be acquitted. It is also argued that before checking

the package parcel, wherefrom contraband substance is

alleged to have been recovered, no notice under Section

50 of the NDPS Act was served upon the accused and

therefore also for failure of compliance of mandatory

provision the accused deserves to be acquitted. Lastly,

learned counsel, in alternative, submits that in case his

::: Downloaded on - 04/10/2022 20:23:47 :::CIS

High Court of H.P.…10…

plea for acquittal does not find favour then he has prayed

for reduction of sentence of imprisonment as well as fine

to the minimum prescribed, especially keeping in view

material on record and other mitigating circumstances.

14. Learned Additional Advocate General, for the

reasons scribed in the impugned judgment, has

supported the conviction of the accused.

15. Learned counsel for accused has submitted

that recovered contraband from the accused in the

present case is 1 kg 800 gram and he has been

sentenced to undergo rigorous imprisonment for 12 years

and to pay fine of Rs.1,50,000/-. He has referred

judgments passed in the Cr. Appeal No.554 of 2016 titled

as Khem Chand Versus State of H.P. decided on

31.08.2018; Mohar Singh Versus State of H.P. reported

in 2018 (2) Shim.LC 1090; Raju Versus State of H.P.

reported in 2018 (2) Shim. LC 702; State of H.P.

Versus Gian Chand reported in 2016 (3) Shim. LC

1195; Joga Singh Versus State of H.P. reported in ILR

2016 (IV) HP 403 , wherein for recovery of quantity of

charas weighing 2.100 kg, 1.700 kg, 1.650 kg and 1.300

kg, sentence of rigorous imprisonment of 10 years along

with fine to the tune of Rs.1,00,000/- has been imposed

and has canvassed for reduction of sentence with further

::: Downloaded on - 04/10/2022 20:23:47 :::CIS

High Court of H.P.…11…

plea that family dependent of the accused/convict is

facing grave hardship for his imprisonment. He has also

referred judgement in case titled as State of H.P. Versus

Virender Singh, reported in ILR 2016 (IV) HP 381

wherein for recovery of 3.5 Kg. charas the accused was

sentenced to undergo 10 years imprisonment and to pay

fine of Rs.1 lac only. Another case referred by learned

counsel for the accused appellant is State of H.P. Versus

Pardeep Kumar Etc. reported in Latest HLJ 2018 (SC)

555 wherein for recovery of 19 Kg. charas sentence of 12

year imprisonment was imposed.

16. It is settled law that statement of a hostile

witness is not to be brushed aside in toto and in case

deposition of the hostile witness or any part thereof finds

corroboration or is substantiated by other reliable

evidence on record, the said portion of deposition can be

taken into consideration in favour of either party.

17. As per prosecution case, the Investigating

Officer PW-13 HC Kartar Singh, three police officials,

namely PW-1 Constable Surinder Singh, PW-2 Constable

Subhash Chand, PW-3 Constable Pawan Kumar, and two

independent witnesses, i.e. PW-4 Pankaj Kumar and PW-5

::: Downloaded on - 04/10/2022 20:23:47 :::CIS

High Court of H.P.…12…

Shashi Kumar, are spot eye-witnesses of recovery of

contraband substance.

18. PW-13, PW-1, PW-2 and PW-3 have

corroborated the prosecution case in its totality, without

any mistake or material contradiction. In their cross-

examination, nothing material could be elicited. However,

as noticed above, independent witnesses PW-4 and PW-5

were declared hostile and subjected to cross-examination

by the learned Public Prosecutor.

19. In our opinion, deposition of the hostile

witnesses is of no help to the accused, rather the

admissions made by them during cross-examination by

the learned Public Prosecutor substantiate the

prosecution case. In examination-in-chief, both of them

have stated that when they were sitting in their shop (s)

at Devi Dehra, police came and asked them to sign some

papers and obtained their signatures on some

documents. In cross-examination, both of them have

admitted the presence of each other in Devi Dehra at the

relevant point of time, i.e. 3.45 p.m., corroborating the

claim of the prosecution. Though they have denied of

having noticed the accused coming from the stairs of the

temple, carrying a package parcel of shawl and becoming

frightened, on noticing the police, but both of them have

::: Downloaded on - 04/10/2022 20:23:47 :::CIS

High Court of H.P.…13…

admitted the snapping of photographs on the spot and

their presence in Photograph Ex.PW-1/A-6, at the time of

weighing the contraband. They have also admitted their

signatures on parcel of contraband (Ex.P-1), Certificate of

Identification of contraband (Ex.PW-2/A), Consent Memo

(Ex.PW-2/B), Memo of Search by Police Party (Ex.PW-2/C),

Sample seal (Ex.PW-2/D) and Seizure Memo (Ex.PW-2/E).

PW-4 has also admitted his signatures on Arrest Memo

(Ex.PW-2/F) and Jamatalashi Memo (Ex.PW-2/G). Though

PW-4 has denied his presence during the investigation,

however, admitted that when contraband substance was

weighed by the police, he was standing with the police.

He has also stated that his shop is in front of the place

where they are shown standing in the photographs. This

fact further corroborates the prosecution case, as in the

Site Plan (Ex.PW-13/B), shop of PW-4 has been shown in

front of Place-B, where the accused was noticed and

Place-A has been indicated as a place where PW-13 was

talking with PW-4 and PW-5. Shashi Kumar (PW-5) has

admitted that recovered substance was checked with

Drug Detection Kit and that the police had filled the forms

in his shop. He has also admitted the sealing of the

parcel by the police, but with further statement that he

did not remember the seal, which was affixed on the

::: Downloaded on - 04/10/2022 20:23:47 :::CIS

High Court of H.P.…14…

parcel and again he has admitted his signatures on the

said parcel. PW-4 though, has admitted presence of

Shashi Kumar on the spot, but contrary to PW-5 Shashi

Kumar, has denied the sealing of the parcel by the police,

but again has admitted obtaining his signatures thereon

by the police.

20. From the scrutiny of evidence of PW-4 and

PW-5, it is evident that they have admitted not only their

presence on the spot at the relevant point of time, but

also the presence of police party as well as of the

accused. Further, detection, weighing and seizure of the

contraband on the spot and preparation of documents

related thereto has also been admitted by these

witnesses, which substantiates the prosecution case

established in deposition of official witnesses PW-1, PW-2,

PW-3 and PW-14.

21. Mere fact that the independent witnesses

were declared hostile for deviating from their earlier

statements, recorded under Section 161 of the Code of

Criminal Procedure, does not make any difference. It is

also noticeable that their admissions in cross-

examination, conducted by the learned Public Prosecutor,

have not been questioned by the defence counsel as

these witnesses were not cross-examined, despite

::: Downloaded on - 04/10/2022 20:23:47 :::CIS

High Court of H.P.…15…

granting opportunity to the defence. It is not a case

where a hostile witness has come with a story, which is

altogether different from the prosecution case or has

deposed in such a manner which falsifies the prosecution

case, rather in the instant case the deposition of the

independent witnesses, when read with the other

evidence on record, fortifies the case of the prosecution.

22. Plea raised on behalf of the accused with

regard to non-compliance of mandatory provision of

Section 50 of the NDPS Act is misconceived. As is

evident from the facts of the case, the contraband

substance, i.e. Charas, was recovered from the package

parcel of shawl, during informal checking of belongings of

the accused, without suspicion of transportation of

contraband substance. Therefore, it was a chance

recovery of contraband that too was not from the person

of the accused but from the package parcel carried by

him.

23. So far as personal search is concerned, it is a

categorical case of the prosecution that after the

identification of recovered contraband substance,

through Drug Identification Kit, as Charas, the

Investigating Officer had proposed personal search of the

accused for further investigation to find out about any

::: Downloaded on - 04/10/2022 20:23:47 :::CIS

High Court of H.P.…16…

other suspicious substance or narcotic or psychotropic

substance beneath the clothes worn by him, and

therefore, for that purpose, a notice under Section 50 of

the NDPS Act (Ex.PW-2/B) was given to him, and when

the accused expressed that he is an illiterate person, not

only that the said notice was explained to him but the

meaning of “Magistrate” and “Gazetted Officer” was also

explained, and thereafter he opted to be searched by the

police officials present on the spot. We find that there is

no illegality or irregularity in the Consent Memo (Ex.PW-

2/B), as before personal search of the accused, the police

officials alongwith witnesses had also given not only their

personal search but also of their belongings, including the

IO Kit, to the accused vide memo Ex. PW-2/C. Therefore,

argument advanced on behalf of the accused, with

respect to non-compliance of Section 50 of the NDPS Act,

is not sustainable.

24. From the material on record, it is evident that

the prosecution has proved its case, beyond reasonable

doubt, by leading cogent, reliable, tangible and

convincing evidence on record that 1 kg 800 gram charas

was recovered from exclusive and conscious possession

of the accused and there is no scope for interference with

the conviction of the accused.

::: Downloaded on - 04/10/2022 20:23:47 :::CIS

High Court of H.P.…17…

25. It is also noticeable in this case that the

Investigating Officer has not made any effort to find out

that wherefrom the recovered Charas was procured and

whereto it was being transported. Drug addiction is a

menace, which is causing destruction of entire youth of

the country. The Investigating Officer has opted for a

casual approach, limiting his investigation only to the

recovery of contraband substance and preparation of

challan against the accused, without investigating the

source and destination of the contraband substance. The

accused, from his background and the manner and

means of his defence, as during trial as well in present

appeal, he has been defended by legal aid counsel,

appears to be a carrier only. Anyhow, we leave it to the

High-ups in the executive to look into this aspect of the

matter and ensure that the investigation conducted in

such like cases cover up all aspects including the source

from where the contraband i.e. charas was procured by

the accused and where the same was being taken

including the person who has sold the same to the

accused and in the case of the accused merely a carrier

the name of the person for whom he was working.

26. So far as plea of the accused that his family is

facing a great hardship on account of his imprisonment in

::: Downloaded on - 04/10/2022 20:23:47 :::CIS

High Court of H.P.…18…

jail is concerned, the same is not tenable and in such like

cases normally should not be considered to reduce the

sentence as in that event it would be nothing but a

misplaced sympathy having no place in law for the

reasons that large number of families of those persons

having ruined on account of consumption of the

contraband being transported by the persons like the

appellant-convict is also a relevant factor for imposition

of sentence. However, with regard to sentence imposed

in the judgments referred aforesaid on behalf of the

accused, there is no dispute. Considering sentence

imposed in these judgments, we feel that all convicts

should be treated uniformly in the matter of imposition of

sentence. Hence, on the basis of these judgments, the

sentence imposed upon the accused/appellant deserves

to be reconsidered. Therefore, the sentence of rigorous

imprisonment of 12 years and payment of Rs.1.5 lacs as

fine deserves to be reduced as this Court did in Khem

Chand’s case cited supra. While upholding the judgment

of conviction passed by the learned Special Judge,

Chamba against the accused, we modify the sentence

imposed upon him, by reducing the same from 12 years

rigorous imprisonment to 10 years rigorous imprisonment

::: Downloaded on - 04/10/2022 20:23:47 :::CIS

High Court of H.P.…19…

and the amount of fine is also reduced from Rs.

1,50,000/- to Rs.1,00,000/-.

27. Therefore, in modification of the impugned

judgment, the appellant-convict is sentenced to

undergo rigorous imprisonment for a period of ten

years and also to pay Rs.1,00,000/- as fine.

28. Consequently, in partial modification of the

impugned judgment as indicated hereinabove, the

appeal is partly allowed and stands disposed of.

29. We place on record our appreciation for the

assistance rendered by Mr.Virender Singh Rathore,

learned Legal Aid Counsel.

30. An authenticated copy of this judgment be

supplied to the Chief Secretary to the government of

Himachal Pradesh and also the Director General of

Police, Himachal Pradesh, for compliance.

( Dharam Chand Chaudhary ),

Judge.

( Vivek Singh Thakur ),

May 2

nd

, 2019(sd) Judge.

::: Downloaded on - 04/10/2022 20:23:47 :::CIS