NARESH PALIWAL Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) The appellant has challenged his conviction under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act).

(2.) The genesis of the case is that HC Satish Kumar (PW14), HHC Chet Ram (PW4) and HC Dhani Ram (PW8) had formed a Nakka at Zero Point Pandoh Dam on 12.3.2008. They were there in official vehicle No. HP-33A-8714 and C. Roshan Lal was its driver. Bus bearing No. HP-32-2299 came from Kullu and was proceeding to Mandi at around 3.15 p.m. The Naka party signaled the bus to stop, when the driver of the bus Shri Roop Lal and conductor Shri Rattan Chand (PW-1) alighted from the bus. According to the prosecution they were associated with the search and seizure of the passengers. The prosecution case is that the accused was occupying seat No. 27 and 28. He was holding a blue coloured bag Ex.P-2 on his lap on which words "Head" was printed. On inquiry, he disclosed his name as Naresh Paliwal and was scared and frightened. This bag was opened in the presence of PW1 Shri Rattan Chand and Shri Roop Lal, driver (not produced as witness) and H.C. Satish Kumar (PW-14), and was found to contain a polythene bag with chocolate like substance, which on smelling and burning tasted like charas. PW4 HHC Chet Ram was sent to bring scales and weights from the shop of Shri Tek Chand (PW- 2). On weighing, the contraband was found to be 1 kg 600 grams. Two samples of 25 grams each were separated and preserved for analysis. Each sample was wrapped in a piece of white paper and each piece of white paper was wrapped in cloth parcel. Each parcel was sealed with six impressions of seal "H". Remaining quantity of contraband weighing 1 kg 550 grams was put in the green polythene bag from which it was recovered. NCB form Ex.PW8/A was filled in triplicate, seal impression etc. was put on this form.

(3.) At this juncture, I need to consider the grounds on which the case of the prosecution has been accepted. The learned Sessions Judge on the evidence concludes that PW1 Shri Rattan Lal does not support the prosecution version and holds that his testimony has been impeached with reference to his previous statement recorded under Section 161 of the Code of Criminal Procedure. The learned trial Court went on to hold that where a prosecution witness was cross-examined by the prosecution, his testimony cannot be relied upon by the defence for contradicting the version of the prosecution. To similar effect are the findings of the learned trial Court with respect to the statement of PW-2 Shri Tek Chand. The learned trial Court then considers the statements of PW4 HHC Chet Ram, PW 14 H.C. Satish Kumar and PW8 HC Dhani Ram, who entered the bus for the purpose of searching the passengers which included the accused and proceeded to convict the accused. Learned trial Court relied upon the decision in Bharwada Bhoginbhai Hirji Bhai versus State of Gurjarat, 1983 3 SCC 217 who states that (a) the witnesses does not have photographic memory; (b) that the contradictions are not material in nature and in this eventuality, unless there are fundamental contradictions in the evidence, the prosecution evidence cannot be discarded and (c) that the evidence of the police officials cannot be discarded. Having dealt with this law, the Court holds that the accused is guilty of the offence and then proceeds to convict and sentence him.