Rajiv Sharma, J.@mdashThis appeal is instituted against a judgment rendered by learned Special Judge, Fast Track Court, Kullu, Himachal Pradesh on 26.5.2011 in Sessions Trial No. 50 of 2010, whereby appellant/accused (herein after referred to as ''accused'' for convenience sake), who was charged with and tried for offence under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (herein after referred to as ''the Act'' for convenience sake), has been convicted and sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. 1.00 Lakh, in default of payment of fine to further undergo simple imprisonment for a period of two years.
2. Case of the prosecution, in a nutshell, is that on 9.4.2010, ASI Sada Nand alongwith ASI Kesar Singh, HC Gopal Chand and Constable Sunil Kumar was going in official vehicle No. HP.34A-9986. The vehicle was being driven by Constable Rup Singh. At about 6.15 pm, when police party reached village Tarakara near a culvert, they saw a person coming down towards road having black coloured backpack (rucksack). On seeing the police, he turned towards hand pump side and ran towards Nullah. He jumped down from that Nullah. Police party, on the basis of suspicion, chased him and nabbed him. Accused person received injuries. He disclosed his name as Sushil Kumar alias Shilu. SI Sada Nand associated ASI Kesar Singh and Constable Sunil Kumar as witnesses. IO told accused that his personal search is required to be taken. He was apprised about his legal right, orally as well as in writing, that he could give his personal search in the presence of a Magistrate or a Gazetted Officer. SI Sada Nand after giving his personal search to the accused conducted the search of the accused. Contraband was recovered from the bag. It was found to be Charas. Charas was weighed and it was found to be 5.600 kg. Charas was again put in the same packet. It was further wrapped with cloth. IO filled up NCB form in triplicate. Seizure memo was prepared. Rukka was sent to the Police Station. FIR was registered on the basis of said Rukka. Accused was taken to the hospital for medical examination. The case property was sent to the FSL Junga for chemical examination. The investigation was completed. Challan was put up and after concluding the trial, accused was convicted and sentenced as noticed herein above.
3. Mr. Avinash Jaryal, Advocate has vehemently argued that the Prosecution has failed to prove its case against the accused.
4. Mr. Ramesh Thakur, Assistant Advocate General has supported judgment dated 26.5.2011.
5. We have heard the learned counsel for the parties and also gone through the record carefully.
6. PW-1 Constable Sunil Kumar has deposed that he alongwith ASI Kesar Singh, HC Gopal was on patrolling duty at Sangri Baag in official vehicle No. HP.34A.9986. The vehicle was being driven by Constable Rup Singh. When they reached at Tarakara bridge, one person came from upper side of the road having a rucksack of black colour. He ran towards Nullah and jumped from the road. Police chased him. He was nabbed. IO sent him to call for independent witnesses from the locality. IO asked the accused about his identity. IO told the accused that he was suspecting some narcotic substance in his possession. He left the place in search of independent witnesses but could not find any independent witness from the nearby place. He informed the IO that no independent witness was available in the village. IO associated him and Kesar Singh as witnesses. IO asked the accused to whom he wanted to give his personal search. Accused was told by the IO that he could get himself (accused) searched by him or by some Gazetted Officer. Accused told the IO that he wanted to be searched by the police. Consent memo was prepared and it was signed by him alongwith Kesar Singh and the accused. The consent memo is Ext. PW-1/A. ASI Sada Nand gave his personal search to the accused. Thereafter, the search of bag was conducted. The bag was opened, in which one white coloured bag was found which was having words "VEEKAY ENTERPRISES" The bag found inside the main bag was opened on which VEEKAY ENTERPRISES was written. It was opened and one another polythene bag yellow in colour was found which was wrapped with yellow coloured tape. The tape was removed and small polythene packets were found in which black coloured substance was found. The black coloured substance was tasted and found to be Charas. IO also found other substance which was round. It was also tasted. The contraband was weighed. It was found to be 5.600 kg. Charas was put in the same polythene packet and put in the rucksack. Thereafter, it was sealed in a piece of parcel. Parcel containing bags and Charas was sealed with seven impressions of seal ''A'' and second parcel containing weighing machine etc. was sealed with four impressions of seal ''A''. The NCB form I in triplicate was filled by the IO. All the articles were taken into possession vide memo Ext. PW-1/B. Copy of recovery memo was supplied to the accused. Sample seal was taken on a piece of cloth vide Ext. PW-1/C. Photographs of the place were also taken. SHO prepared the file and handed it over to him. He returned back to the place of occurrence and handed over the case file to the IO at the spot. IO informed the accused about the grounds of arrest and arrested him vide memo Ext. PW-1/D. In his cross-examination, he admitted that there remains traffic on the road. Volunteered that there was no vehicle plying at that time. He was not aware that the houses of Jogi Ram and Dot Ram were situated just 10 metres away from National Highway at village Tarakara. He denied that the houses of Toti Devi, Chhabilu, Mohan Lal, Ses Ram and Singhu are situated adjoining to the houses of Jogi and Dot Ram at village Tarakara. He left the spot at 8.30 pm to the Police Station and reached at the Police Station at 9.00 pm. He again started back towards the place of occurrence at about 9.40 pm. He reached the spot at 10.00 pm. IO apprised the accused about the grounds of arrest and arrested him.
7. PW-2 SI Sada Nand deposed that he alongwith ASI Kesar Singh, HC Gopal Singh, Constable Sunil Kumar proceeded on patrol duty towards village Tarakara in official vehicle on 9.4.1010. When they reached at village Tarakara at about 6.15 pm, one person came from hillside. He jumped below the road. He was apprehended. Constable Sunil Kumar was sent to search for independent witnesses. Constable Sunil Kumar came back after about 15 minutes and told the IO that no independent witness was available. He associated ASI Kesar Singh and Constable Sunil Kumar as witnesses. He apprised the accused about his legal right regarding personal search that he could be searched before a Magistrate, Gazetted Officer or the police. Accused gave his consent vide consent memo Ext. PW-1/A. Contraband was recovered from the bag carried by the accused. It was duly sealed with 7 impressions of seal ''A''. It weighed 5.600 kg. A Rukka was sent vide Ext. PW-1/C to the Police Station through Constable Sunil Kumar at 8.30 pm. Constable Sunil Kumar again came back to the place of occurrence at about 10.15 pm. He denied the suggestion in his cross-examination that the houses of Jogi Ram and Dot Ram are situated just 10 yards from the road. He was not aware that the houses of Toti Devi, Chhabilu, Mohan Lal, Ses Ram and Singhu Ram are situated in village Tarakara.
8. PW-3 Constable Rajnish Kumar deposed that on 12.4.2010, MHC Ram Krishan has handed over one parcel sealed with seal impressions ''A'' and ''K'' alongwith sample seals ''A'' and ''K'' NCB I form in triplicate, seizure memo and copy of FIR with the directions to deposit the same with FSL Junga vide RC No. 106/10. He deposited the same with FSL Junga on 12.4.2010.
9. PW-4 SI Tej Ram deposed that he received one Rukka through Constable Sunil Kumar vide Ext. PW-2/C. FIR was registered vide Ex. PW-4/B. ASI Sada Nand has produced two parcels, one containing Charas 5.600 kg and another parcel containing bowl etc alongwith NCB I form in triplicate. He resealed the Charas with 7 impressions of seal ''K'' and he also resealed second parcel with 4 seal impressions of ''K''. He has taken the impression of seal on a piece of cloth vide Ext. PW-4/C.
10. PW-5 Inspector Mahesh Kumar sent the parcel of Charas to FSL Junga vide forwarding letter Ext. PW-5/A.
11. PW-6 Dr. Sushil has examined the accused on 11.4.2010 at 10.30 pm. He has noticed injuries on his body. He issued MLC Ext. PW-6/A.
12. PW-7 Dr. Ashok Rana has examined the accused and issued MLC Ext. PW-7/A.
13. PW-8 MHC Ram Krishan deposed that he was posted as MHC Police Station Kullu. On 10.4.2010, SHO Tej Ram handed over two parcels alongwith NCB I form in triplicate, sample of seals A and K, photocopies of FIR and seizure memo. Out of these, two parcels, one was sealed with 7 impressions of seal ''A'' and resealed with 7 impressions of seal ''K''. Second Pulinda was stated to be containing weighing machine sealed with 4 impressions of seal ''A'' and resealed with 4 impressions of seal ''K''. He handed over sealed parcel on 11.4.2010 alongwith NCB Form and FIR to Constable Rajnish Kumar with the direction to deposit the same with FSL Junga.
14. Mr. Avinash Jaryal has vehemently argued that the prosecution has not examined any independent witness. It has come in the statement of PW-1 that the IO told him to call for independent witnesses from the locality. He left the place of occurrence and went to search for independent witnesses. He could not find any independent witness from nearby place. He informed that no one was available in the village. PW-2 Sada Nand also deposed that he sent Sunil Kumar to search for independent witnesses. Constable Sunil Kumar came after 15 minutes and told him that no independent witnesses were available. Mr. Avinash Jaryal has argued that according to PW-1 Sunil Kumar, he left with Rukka to the Police Station at 9.00 pm and came back at 10.00 pm. However, PW-2 deposed that Constable Sunil Kumar took Rukka at 8.30 pm and came back at 10.15 pm. There is variance of only 15 minutes. It is a minor contradiction. PW-1 Sunil Kumar and PW-2 Sada Nand have denied that the houses of Jogi Ram and Dot Ram were situated near the National Highway. It has come in the statement of PW-1 that they were on National Highway but no vehicles were plying at that time.
15. Accused has been apprised of his legal right to be searched before a Magistrate. He has given his consent. There is no procedural lapse in the seizure and sampling undertaken on the spot. Rukka was prepared by PW-2 Sada Nand. It was sent to Police Station through Sunil Kumar, on the basis of which, FIR was registered. PW-1 Sunil Kumar brought back the documents. NCB form was filled in. Contraband was sealed with 7 impressions of seal ''A''. Samples of the seal were obtained on a piece of cloth vide Ext. PW-1/C. PW-4 Tej Ram has deposed that Sada Nand produced two parcels containing Charas weighing 5.600 kg. He resealed the parcel of Charas by affixing 7 seals of seal impression ''K''. The samples have reached FSL Junga intact. The substance was found to be Charas. It has also come in the statements of PW-6 and PW-7 i.e. Dr. Sushil and Dr. Ashok Rana that the accused has received injuries.
16. Accordingly, the prosecution has proved its case against the accused to the hilt. We will not interfere with the well reasoned judgment of the learned trial court.
17. In view of the discussion and analysis made hereinabove, there is no merit in the appeal and the same is dismissed. Pending applications, if any, are also disposed of.
