GURVINDER SINGH Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) Instant appeal filed under Sec. 374 (2) of the Cr.PC., lays challenge to the judgment passed by Learned Special Judge (II) (Additional Session Judge), Kullu, H.P., whereby the appellants-accused (hereinafter referred to as 'the accused'), came to be convicted and sentenced to undergo rigorous imprisonment for seven years and to pay fine of Rs.70,000.00 and in default of payment of fine, to further undergo simple imprisonment for one year, for having committed offences punishable under Ss. 20, 25 and 29 of NDPS Act (herein after referred to as 'the Act').

(2.) Precisely, story of the prosecution, as emerge from the record, is that on 9/11/2014, at 7:00 pm, police party consisted of PW-12 HC Deepak Kumar, PW-11 Constable Naveen Kumar and HHC Lal Singh of Police Post Jari, was present at a distance of 10 meters in front of Police Post, Dunkhara, Jari District Kullu on Bhuntar-Manikaran road. Police party stopped one scooter bearing registration No. PB-07H-7372 coming from Manikaran side being driven by accused No.1 namely Gurwinder Singh. On the askance of police, accused disclosed their names to be Gurvinder Singh and Kuldeep Singh. PW-12 HC Deepak Kumar asked the accused to produce the documents of the scooter, who in turn, opened the dickey of the scooter, underneath the handle in front, where one yellow coloured cloth bundle was found kept there. Accused were asked to get the bundle checked, but they started making excuses to get the bundle searched. Investigating Officer PW-12 HC Deepak Kumar asked the PW- 11 Constable Naveen Kumar to bring the independent witnesses. PW-11 Constable Naveen Kumar on the askance of PW12 HC Deepak Kumar brought PW9 Dhale Ram, who at that relevant time, was working as security guard in MPCL. PW-12 HC Deepak Kumar after having associated PW9 Dhale Ram and PW-11 Constable Naveen Kumar as witnesses gave their personal search to the accused, but nothing incriminating was found in their possession, regarding which memo Ext.PW9/A was prepared and signed by the witnesses as well as accused persons. On opening the said bundle, seven chappad of black coloured substance wrapped with transparent polythene were found. PW-12 HC Deepak Kumar, I.O., prepared the identification memo Ext.PW9/C at police post Jari, which was situate at the distance of 10 meters from the spot. I.O. alongwith recovered substance, scooter of the accused persons and witnesses came to Police Post Jari, where ASI Dharam Chand was also associated in the investigation. On weighing, the recovered substance was found to be 722 grams. Recovered charas was again put in the said yellow cloth and put inside the cloth parcel, which was sealed with six seals of seal impressions 'T'. Polythene wrappers were also sealed in a separate cloth parcel and sample seal of seal 'T' was separately obtained on piece of cloth Ext.PW9/E. PW-12 HC Deepak Kumar filled NCB-I form in triplicate Ext.PW1/A and sample seal was also taken on the same, which was handed to PW9 Dhale Ram, vide memo Ext.PW9/G. RC of the scooter Ext.PW11/B and DL Ext.PW11/C were also taken into custody by the police. As per RC of the vehicle, person namely Tilak Raj of Chandigarh was found to be the original owner of the said scooter. The recovered substance/charas, alongwith RC of the scooter, DL and scooter alongwith keys were taken into possession vide seizure memo Ext.PW9/B in the presence of the witnesses. PW9 Dhale Ram and PW-11 Constable Naveen Kumar put their signatures on the seizure memo Ext.PW9/B. During investigation, it was found that the accused persons had purchased the said charas from one Nepali National at Kasol. PW-12 HC Deepak Kumar, I.O., prepared ruqua Ext.PW12/A and handed over the same to PW-11 Constable Naveen Kumar with the directions to take the same to PS Kullu for registration of the case, on the basis of which, FIR Ext.PW6/A came to be registered at the PS Kullu. On 9/11/2014, PW6 Inspector Neel Chand after having received ruqua Ext.PW12/A at PS. Kullu, through PW-11 Constable Naveen Kumar registered FIR Ext.PW6/A and made endorsement Ext.PW6/B on ruqua. He after preparing the case file, handed over the same to PW-11 Constable Naveen Kumar with direction to hand over the same to the Investigating Officer on the spot. On 10/11/2014, at around 1:00 pm, the case property i.e. parcel stated to be containing 722 grams of charas sealed with six seals of seal impressions 'T' alongwith NCB-I in triplicate, sample seal and other relevant documents were produced before PW6 Inspector Neel Chand, SHO, P.S. Kullu, H.P., who resealed the parcels with three seals of seal impressions of 'H' and after taking sample seal on piece of cloth Ext.PW6/C as well as on NCB-I in triplicate Ext.PW1/C, handed over the case property alongwith sample seals, NCB-I in triplicate and other relevant documents and also the keys of the vehicle to PW1 HC Gajender Pal, MHC, Kullu. On 10/11/2014, PW1 HC Gajender Pal, MHC, Kullu, on receipt of the case property alongwith NCB-I in triplicate and other relevant documents from PW6 Inspector Neel Chand deposited the same in Malkhana at Sr. 265. On 12/11/2014, HC Gajender Pal, MHC, after filling the relevant columns of NCB-I in triplicate Ext.PW1/C sent the sealed parcel containing charas alongwith samples seals of 'T&H', NCB-I in triplicate and other relevant documents with docket prepared by PW-6 Inspector Neel Chand vide RC No. 501 of 2015 Ext.PW2/B through PW2 Constable Sanjay Kumar, for deposit at SFL, Junga. On 1/12/2014, PW3 Constable Mahesh Kumar brought back the case property alongwith result from SFSL, Junga and handed over the same to MHC, who thereafter prepared the special report Ext.PW7/A and handed over the same to Sh. Nihal Chand, Additional SP Kullu, who after making endorsement Ext.PW7/C handed over the same to his Reader PW7 HC Balbir Sharma, who made an entry in the relevant register. On 12/11/2014, PW10 Gagan Deep Singh brother in law of the accused Gurvinder Singh handed over an affidavit to the police, which was taken into possession vide memo Ext.PW10/B duly signed by Gagan Deep Singh and PW-11 Constable Naveen Kumar. PW-12 HC Deepak Kumar, I.O. recorded the statements of the prosecution witnesses as per their versions and thereafter, on receipt of the report from SFSL and on completion of investigation, presented the case file before PW-6 Inspector Neel Chand, SHO, PS, Kullu, for preparing the challan. After presentation of the challan, presence of the accused was procured and copies of challan were supplied to them in compliance of Sec. 207 Cr.PC. Court having found prima-facie case against the accused under Ss. 20, 25 and 29 of the Act, proceeded to frame charges against them under aforesaid provisions of law, to which accused pleaded not guilty and claimed trial. Prosecution with a view to prove its case, examined as many as 12 witnesses, whereas despite opportunity, no evidence in defence came to be led on record by the accused, who otherwise in his statement recorded under Sec. 313 Cr.PC denied case of the prosecution in toto and claimed themselves to be innocent.

(3.) Learned Special Judge on the basis of evidence led on record by the respective parties, found story of the prosecution to be correct and accordingly, vide judgment dtd. 22/5/2017, convicted and sentenced them as per description given herein above. In the aforesaid background, accused have approached this Court in the instant appeal, seeking therein their acquittal after setting aside the judgment of conviction and order of sentence recorded by the court below.