Dismissed

Rajinder Kumar v. State of Hp

Himachal Pradesh HC1 Dec 2022CR.A/44/2019

Case brief

AI extract

What is this about?

The High Court dismissed an appeal challenging a conviction under Section 20 of the NDPS Act. The court upheld the trial court's finding that reliable police testimony was sufficient to prove possession of charas, rejected the defense of minor contradictions, and dismissed the claim of false implication due to lack of evidence.

What did the court decide?

Conviction and sentence upheld; appeal dismissed; pending miscellaneous application disposed of.

Rajinder Kumar Vs State of Hp — Narcotics (NDPS) | Himachal Pradesh HC (2022)

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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

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Criminal Appeal No. 44 of 2019

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Reserved on: 22^nd November, 2022 Decided on: 1^st December, 2022

Rajinder Kumar

…..Appellant

Versus

State of Himachal Pradesh

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…..Respondent

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________________________________________________________ Coram_

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Hon'ble Ms. Justice Sabina, Judge

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Hon’ble Mr. Justice Sushil Kukreja, Judge

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1 Whether approved for reporting?

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____________________ For the Appellant:	______________________________ Mr. Avinash Jaryal, Advocate.
For the Respondent:	Mr. Anil Jaswal, Additional Advocate General.

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Sushil Kukreja, Judge

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The instant appeal filed under Section 374 (2) of Code of Criminal Procedure, lays challenge to judgment of conviction dated 23.06.2018 and order of sentence dated 03.07.2018, passed by learned Special Judge-II, Kinnaur at Rampur Bushehar, H.P. in Sessions Trial No.4-R/3 of 2017, titled State of Himachal Pradesh Versus Rajinder Kumar, whereby the appellant (hereinafter referred to as the accused), was convicted and 1 Whether reporters of Local Papers may be allowed to see the judgment?

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sentenced to undergo rigorous imprisonment for 10 years and to pay fine of Rs.1,00,000/- and in default of payment of fine, he shall further undergo simple imprisonment for three months, for the commission of offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred as “NDPS Act”).

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2 . The prosecution story, in brief, is that on 19.03.2017, ASI Rajinder Singh, who is the Investigating Officer of the case, alongwith HHC Dalip Kumar and C. Ajay Sharma, was present at Kotnallah on NH-305 in connection with a naka and at about 9:35 a.m., one person was noticed coming on foot from Chownti towards Luhri side, who was having a yellow colour carry bag in his right hand and on seeing the police party, he got perplexed and after being inquired by the police, he disclosed his name as Rajinder Kumar, but he could not give any satisfactory explanation as to what was inside the carry bag. On the basis of suspicion, the carry bag was checked by the police and on opening the zip of the bag, three polythene packets, wrapped with cello-tape, were found and further on checking the said polythene packets, a black coloured substance, in the shape of sticks, was found. On the basis of experience, the same was found to be

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charas/cannabis. The Investigating Officer also got suspicion that the accused might be carrying some illegal contraband with him, so he apprised the accused about his legal right to be searched before a Magistrate or any Gazetted Officer, however, the accused consented to be searched by the police party present on the spot and thereafter the Investigating Officer gave his personal search to the accused. There was no human habitation nearby, hence, the Investigating Officer stopped 3-4 vehicles, but none of occupants of the vehicles agreed to witness the proceedings, therefore, the Investigating Officer associated HHC Dalip Kumar and C. Ajay Sharma as witnesses and conducted the personal search of the accused, but nothing incriminating was found during his personal search Thereafter, the recovered charas was weighed with the help of electronic scale, which was found to be 2 kg 570 grams and then the same was packed in the same carry bag, which was put in a cloth parcel and sealed with nine seals of seal impression 'T' and sample of seal was separately taken on a piece of cloth. The Investigating Officer filled up the relevant columns of NCB-I form and the seal after use was handed over to HHC Dalip Kumar. The aforesaid cloth parcel alongwith NCB-I form in triplicate and sample seal was taken into possession.

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Thereafter, the Investigating Officer prepared rukka and sent the same to Police Station, Anni, through C. Ajay, for registration of FIR.

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3. On the receipt of the rukka, FIR No.24, dated 19.03.2017 was registered at Police Station Anni, District Kullu against the accused under Section 20 of the NDPS Act.

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4. During investigation, the Investigating Officer prepared the spot map, recorded statements of the witnesses, got clicked photographs of the spot, arrested the accused and thereafter produced the accused alongwith case property before ASI Gian Chand, who resealed the cloth parcel with seven seals of seal impression 'H’, filled up the relevant columns of NCB-I form and impression of seal 'H' was also taken on a separate piece of cloth. ASI Gian Chand deposited the case property alongwith sample seals and NCB forms in the Malkhana. On 20.3.2017, MHC Sunil handed over the case property alongwith documents to HHC Laxman Dass to deposit the same in SFSL, Junga.

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5. On completion of the investigation and after receipt of the SFSL report, charge-sheet was prepared by SHO Bhoop Singh and thereafter the Investigating Officer ASI Rajinder Singh presented the same in the Court.

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6. Charge was framed by the learned trial Court against

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the accused under Section 20 of the NDPS Act, vide order dated 24.08.2017. Accused did not plead guilty of the charge framed against him and claimed trial.

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7. In order to prove its case, the prosecution examined as many as 9 witnesses. Statement of the accused was recorded

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under Section 313 Cr.P.C., wherein, he denied all set of incriminating evidence led by the prosecution against him, besides he pleaded that he was de-boarded from the bus by the police at Luhari and planted a false case on him. The accused examined one witness in his defence

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8. On the basis of evidence led on record by the prosecution as well as by the accused, the learned trial Court held the accused guilty of his having committed the offence punishable under Section 20 of NDPS Act and sentenced him as per description given hereinabove.

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9. Being aggrieved and dissatisfied with the judgment of conviction and order of sentence passed by the learned trial Court, the accused approached this Court by way of an appeal, praying therein for his acquittal after setting aside the aforesaid judgment of conviction and order of sentence.

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10. We have heard the learned counsel for the appellant as well as the learned Additional Advocate General and also gone through the record carefully.

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11. The learned counsel for the appellant contended that the prosecution has failed to prove that the charas, in question, was recovered from the exclusive and conscious possession of the accused. He further contended that as no independent witness was associated by the prosecution and the case of the prosecution is based on the testimony of the police officials only, who are interested in the outcome of the result of the case, therefore, the case of the prosecution has become doubtful. He also contended that there are major and material contradictions in the statement of the witnesses, which render the prosecution case highly suspicious.

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12. On the other hand, learned Additional Advocate General supported the judgment of the learned trial Court and contended that since the charge against the accused has been duly proved by the prosecution beyond reasonable doubt, the learned trial Court has rightly convicted the accused on the basis of proper appreciation of evidence.

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13. The accused stood charged for commission of the offence under Section 20 of the NDPS Act for having been found in exclusive and conscious possession of charas, weighing 2 kg 570 grams. To substantiate the said charge and to bring home the guilt of the accused, the prosecution has examined as many as 9 witnesses. However, the case of the prosecution mainly rests upon the statements of PW-2 C. Ajay, PW-3 HHC Dalip Kumar and PW-9 ASI Rajinder Singh (Investigating Officer). These are the most material witnesses of the prosecution, who have been examined primarily to prove the search, recovery and seizure of charas, in question, from the exclusive and conscious possession of the accused. These witnesses have stated in one voice that on 19.03.2017, they were present at place Kotnallah on NH-305 in connection with nakabandi and at about 9.35 AM, one person was noticed coming on foot towards Luhri side from Chaunti side, who was carrying a yellow carry bag in his right hand, who on noticing the police party got perplexed and he was apprehended by them. Upon inquiry, he disclosed his name as Rajinder Kumar and about the contents of the carry bag, the accused was not able to explain satisfactorily and started shivering. On the basis of suspicion, the Investigating Officer checked the bag and on opening the bag,

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three polythene packets wrapped with cello taps were found. On checking the packets, a black coloured substance in the shape of sticks was found, which was found to be cannabis on the basis of experience. The Investigating Officer suspected that the accused might have concealed some contraband in his person and apprised the accused that his personal search is required to be taken. The Investigating Officer had given him option to be searched before Gazetted Officer or nearest Magistrate. The accused had given his consent to be searched by the police party present on the spot and in this regard memo Ex.PW2/A was prepared. The spot was a secluded place and there was no human habitation nearby and the Investigating Officer tried to associate the occupants of 2-4 vehicles as witnesses, but none of them consented to witness the proceedings and thereafter he associated PW-2 C. Ajay and PW-3 HHC Dalip Kumar as witnesses. The Investigating Officer had given his personal search to the accused, vide memo ExPW2/B, but nothing incriminating was found and then the personal search of accused was conducted, vide memo Ex PW2/C, but no incriminating substance was recovered from his person. Thereafter, the recovered contraband was weighed with the help of electronic scale, which

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was found to be 2.570 k g and the same was repacked in the same manner in the carry bag, which was then put in a cloth parcel and was sealed with 9 seals of seal impressions 'T'. NCB-1 forms in triplicate Ex.PW1/C was filled in by the Investigating Officer. Sample of seal 'T' was separately taken on a piece of cloth and the seal 'T' after its use was handed over to PW-3 HHC Dalip Kumar. The above parcel alongwith sample of seal 'T' and form NCB-1 in triplicate were taken into possession, vide memo Ex.PW2/E. Thereafter, Investigating Officer prepared rukka and handed over the same to PW-2 C. Ajay, which he took to Police Station Anni and handed over to the MHC. On the basis of rukka, FIR EX.PW2/F was registered and after registration of the FIR and preparation of case file, PW-2 C. Ajay handed over the same to the Investigating Officer .

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14. So far as the conviction on the basis of testimony of the police officials is concerned, it is well settled that the conviction can be based upon the testimony of the police officials, provided that such testimony is reliable, trustworthy and confidence inspiring. In Pramod Kumar Versus State (Government of NCT of Delhi), (2013) 6 Supreme Court Cases 588 , the Hon’ble Supreme Court has held that if the testimony of

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the police officer is found to be reliable and trustworthy, the Court can definitely act upon the same, however, If, in the course of scrutinizing the evidence, the Court finds the evidence of the police officer as unreliable and untrustworthy, the Court may disbelieve him but it should not do so solely on the presumption that a witness from the Department of Police should be viewed

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with distrust. Para-13 of the judgment reads as under:-

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“ 13 . This Court, after referring to State of U.P. v. Anil Singh, State (Govt. of NCT of Delhi) v. Suni l and Ramjee Rai v. State of Biha r has laid down recently in Kashmiri Lal v. State of Haryana that there is no absolute command of law that the police officers cannot be cited as witnesses and their testimony should always be treated with suspicion. Ordinarily, the public at large show their disinclination to come forward to become witnesses. If the testimony of the police officer is found to be reliable and trustworthy, the court can definitely act upon the same. If, in the course of scrutinising the evidence, the court finds the evidence of the police officer as unreliable and untrustworthy, the court may disbelieve him but it should not do so solely on the presumption that a witness from the Department of Police should be viewed with distrust. This is also

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based on the principle that quality of the evidence weighs over the quantity of evidence.”

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15 . Similarly, in Baldev Singh Versus State of Haryana, (2015) 17 Supreme Court Cases 554 , the Hon’ble Supreme Court has held that evidence of police witnesses cannot be discarded merely on the ground that they belong to police force

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and interested in the investigation and their desire to see the success of the case. Relevant para of the judgment reads as

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under:-

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“ 10. There is no legal proposition that evidence of police officials unless supported by independent evidence is unworthy of acceptance. Evidence of police witnesses cannot be discarded merely on the ground that they belong to police force and interested in the investigation and their desire to see the success of the case. Prudence however requires that the evidence of police officials who are interested in the outcome of the result of the case needs to be carefully scrutinised and independently appreciated. Mere fact that they are police officials does not by itself give rise to any doubt about their creditworthiness.”

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16 . In Surinder Kumar Versus State of Punjab, (2020) 2 Supreme Court Cases 563 , the Hon’ble Supreme Court has held

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that the Court cannot start with the presumption that the police records are untrustworthy. As a presumption of law, the presumption should be the other way round . Para-16 of judgment reads as under:-

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“16. In State ( NCT of Delhi) v. Sunil it was held as under: (SCC p.655)

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“It is an archaic notion that actions of the police officer should be approached with initial distrust. It is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a presumption of law, the presumption should be the other way round. The official acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature”.

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17 . Therefore, in view of the aforesaid settled legal position, it is to be examined as to whether the search, recovery and seizure of the charas, in question, are doubtful as contended by the learned counsel for the appellant. We have carefully

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perused the statements of police witnesses, i.e. PW-2 C. Ajay, PW-3 HHC Dalip Kumar and PW-9 ASI Rajinder Singh, who is the

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Investigating Officer. However, we did not find any infirmity in their statements so far as recovery of charas in question from the possession of the accused is concerned. It has been categorically stated by these witnesses that the spot was a secluded place and there was no human habitation nearby and the occupants of 3-4 vehicles were requested to be as witnesses, but they refused to become witnesses of the proceedings, as such, the Investigating Officer had associated PW-2 C. Ajay and PW-3 HHC Dalip Singh as witnesses. All of them successfully withstood the test of crossexamination and nothing favourable could be extracted from their cross-examination. Their statements are quite natural, consistent and reliable on the point of recovery of charas and there is no reason to disbelieve them. Neither it is suggested or indicated, nor it is proved that the aforesaid police officials had any ill-will or any animosity against the accused.

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18 . Hence, in view of the facts and circumstances of the present case, the evidence of the aforesaid police officials cannot be discarded merely for the reason that they are police officials and they are interested in the outcome of the result of the case. From the perusal of their statements, it cannot be said that the case of the prosecution is doubtful on the point of search,

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recovery and seizure of charas in question only because of the fact that no independent witness was associated as contended by the learned counsel for the appellant.

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19. The accused was examined under Section 313 Cr.P.C., wherein he stated that he was de-boarded from the bus by police and they planted a false case against him. However, this version of the accused that a false case has been planted upon him is not supported by any concrete material. Although, in his defence, the accused examined one witness, i.e. DW-1 Suresh Kumar, Adda Incharge of HRTC, who deposed that on 18.03.2017 bus No.HP66A-2596 was on route from Kullu to Anni and on 19.03.2017, the bus travelled back from Anni to Kullu. He also produced on record photocopy of ticket Mark X, issued by the conductor from Anni to Shimla. However, in his cross-examination, he could not state as to whom the ticket Mark X was issued by the conductor. Therefore, no benefit can be derived by the accused from his statement. The accused has failed to establish on record that he was travelling in the bus and was de-boarded by the police at Luhari. Hence, the defence of the accused does not seem to be probable being unsubstantiated. It is not the case of the accused that there was any prior enmity or ill-will or

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misunderstanding between him and the police witnesses so as to implicate him in a case of this nature. In fact, there is no reason for the Investigating Officer and other police witnesses to speak false against the accused. In our considered view, the accused has failed to offer any probable and reasonable explanation as to why a false case was allegedly planted against him by the police.

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20 . Learned counsel for the appellant next contended that there are material contradictions in the statements of the prosecution witnesses about the manner of conducting the search and recovery, as such, the prosecution story is doubtful regarding the recovery of charas in question. However, it is settled law that an undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution witnesses. The whole testimony of a witness cannot be rejected due to some minor contradictions and discrepancies so long it does not affect the core of the prosecution case. In Narayan Chetanram Chaudhary and another Versus State of Mahasrashtra, (2000) 8 Supreme Court Cases 457 , the Hon’ble Supreme Court has held that m inor contradictions are bound to appear in the statements of truthful witnesses as memory

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sometimes plays false and the sense of observation differ from person to person. The relevant para of the judgment reads as under: -

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“42. Only such omissions which amount to contradiction in material particulars can be used to discredit the testimony of the witness. The omission in the police statement by itself would not necessarily render the testimony of witness unreliable. When the version given by the witness in the court is different in material particulars from that disclosed in his earlier statements, the case of the prosecution becomes doubtful and not otherwise. Minor contradictions are bound to appear in the statements of truthful witnesses as memory sometimes plays false and the sense of observation differ from person to person. The omissions in the earlier statement if found to be of trivial details, as in the present case, the same would not cause any dent in the testimony of PW2. Even if there is contradiction of statement of a witness on any material point, that is no ground to reject the whole of the testimony of such witness….”

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21 . Similarly, in Krishna Mochi and others V. State of

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Bihar , AIR 2002 Supreme Court 1965, the Hon’ble Supreme

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Court has held that normal discrepancies in evidence are those

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which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be . Relevant portion of para 94 of the judgment reads as under:-

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“94.………normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so…..”

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22 . In Anuj Singh @ Ramanuj Singh @ Seth Singh Versus The State of Bihar, 2022 Live Law (SC) 402, the Hon’ble Supreme Court, while appreciating the evidence in a criminal trial,

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held that only contradictions in material particulars and not minor contradictions can be a ground to discredit the testimony of the

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witnesses. Relevant portion of para-17 of the judgment reads as under:-

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“17..………However, the testimony of a witness in a criminal trial cannot be discarded merely because of minor contradictions or omission as observed by this court in Narayan Chetanram Chaudhary & Anr. Vs. State of Maharashtra. This Court while considering the issue of contradictions in the testimony, while appreciating the evidence in a criminal trial, held that only contradictions in material particulars and not minor contradictions can be a ground to discredit the testimony of the witnesses…..”

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23 . In the instant case, we have gone through the testimony of the prosecution witnesses i.e. PW-2 C. Ajay, PW-3 HHC Dalip Singh and PW-9 ASI Rajinder Singh, minutely and after going through the statements of the aforesaid witnesses, we have not found any material contradictions therein, which go to the root of the case, as such, their statements cannot be discredited. Hence, no benefit can be derived by the accused from the minor contradictions as pointed out by the learned counsel for the appellant.

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24 . No other point was urged before us.

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25 . Consequently, in view of the detailed discussion made

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hereinabove, there is no illegality, perversity and infirmity in the impugned judgment of conviction as well as the order of sentence passed by the learned trial Court, which otherwise has been passed on proper appreciation of evidence as well as the law, as

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such, the same are upheld.

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26 . The appeal is dismissed.

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Pending miscellaneous application(s), if any, shall also

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stand disposed of.

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( Sushil Kukreja ) December 01, 2022 Judge (VH)

Rajinder Kumar v. State of Hp

Case brief

What is this about?

What did the court decide?

Rajinder Kumar v. State of Hp

Case brief

What is this about?

What did the court decide?

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