Dharma Devi Vs State of Himachal Pradesh

Sanjay Karol, J.@mdashAppellant-convict Dharma Devi, hereinafter referred to as the accused, has assailed the judgment dated 28.10.2010/29.10.2010, passed by Special Judge Kullu, Himachal Pradesh, in Sessions Trial No. 51 of 2009, titled as State v. Dharma Devi, whereby she stands convicted of the offence punishable under the provisions of 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act), and sentenced to undergo rigorous imprisonment for a period of ten years and pay fine of Rs. 1,00,000/- and in default of payment thereof, to further undergo simple imprisonment for a period of six months.

2. It is the case of prosecution that on 29.3.2009, HC Om Parkash (P.W. - 3), alongwith police officials Parveen Kumar (P.W. - 1) and Bahadur Singh (P.W. - 2), was on a patrol duty near village Chohki and Malana Dam. At about 5.30 p.m., they noticed a lady carrying a rucksack on her back. Seeing the police party, she got perplexed and tried to throw away the rucksack so carried by her. She also tried to flee, but was apprehended. On questioning, she disclosed her name as Dharma Devi. Om Parkash suspected that she may be carrying some contraband substance. After complying with the statutory provisions and obtaining her consent vide memo. (Ex. P.W. - 1/D), he searched the bag, from which six packets containing Charas, in the shape of sticks, were recovered. Same were weighed and found to be 2.5 kgs. Two samples, each weighing 25 grams, were drawn and sealed with seal impression ''H''. Remaining bulk parcel was also sealed with the very same seal impression. Sample of the seal was taken on a piece of cloth (Ex. P.W. - 1/E). NCB forma (Ex. P.W. - 3/A) were filled up in triplicate. Ruka (Ex. P.W. - 3/B) was taken by Bahadur Singh, on the basis of which F.I.R. No. 133, dated 29.3.2009 (Ex. P.W. - 8/B), under the provisions of Section 20 of the Act, was registered at Police Station, Sadar, Kullu, by SHO Prem Dass (P.W. - 8). After the file was taken back to the spot, accused was arrested and remaining formalities completed. HC Om Parkash produced the contraband substance before SHO Prem Dass, who resealed the same with his seal impression ''T'', whereafter it was handed over to MHC Roop Singh (P.W. - 6), who deposited the same in the Malkhana. Om Parkash deposited the sealed samples with the Forensic Science Laboratory, Junga. Report (Ex. PA) of the laboratory revealed the contraband substance to be Charas. With the completion of investigation, which prima facie, revealed complicity of the accused in the alleged crime, challan was presented in the Court for trial.

3. Accused was charged for having committed an offence punishable under the provisions of Section 20 of the Act, to which she did not plead guilty and claimed trial.

4. During the pendency of trial, entire bulk parcel was also sent for analysis. HC Ram Krishan (P.W. - 9) handed over the same to HHC Tek Singh (P.W. - 10), who deposited it with the Forensic Science Laboratory, Junga and report (Ex. PB) was produced before the Court.

5. In order to establish its case, prosecution examined as many as 11 witnesses and statement of the accused under the provisions of Section 313 of the Code of Criminal Procedure was also recorded, in which she took the following defence:

"I am innocent. On 29.3.2009 I along with Smt. Kekti Devi and her minor son were waiting for a bus in the rain shelter at Jari in order to go CHC Jari as on that day I was suffering from fever due to chickenpox. The son of Smt. Kekti was also suffering from fever due to chickenpox. Smt. Kekti Devi wife of Hej Raj was suffering with fracture in her arm. At about 10.00 a.m. 2-3 police personnels came in the rain shelter. They noticed an unclaimed bag lying in the rain shelter. The ownership of the said bag was ascertained from the persons who were sitting in the rain shelter. Every body denied to owe the said bag. Thereafter, those police officials opened the said back and some black coloured substance was found in it wrapped in 15-16 different packets. On 1-2 packets the words "Malana Cream" was printed. Thereafter, our names and addresses were ascertained by those police officials, upon which I and Smt. Kekti Devi disclosed our names and addresses and also disclosed that we are the residents of Malana. Thereafter I alongwith Smt. Kekti Devi and minor son were taken to PP Jari. When our conditions deteriorated due to the said diseases, we were taken to CHC Jari, where Dr. was not present the police summoned the Doctor from his residence who had given us treatment. Thereafter the police again took up to police post Jari and child of Smt. Kekti Devi wife of Hem Raj was handed over to my father who was also summoned in the police post and thereafter I and Kekti Devi were falsely implicated by the police."

No evidence in defence was led.

6. Based on the testimonies of witnesses and the material on record, trial Court convicted and sentenced the accused, as aforesaid.

7. It is contended by Mr. Chitkara, learned counsel for the accused that the accused stands falsely implicated and the defence set up by her stands probabilized. In this connection, he also invites our attention to document (Ex. P.W. - 5/A), revealing the fact that accused Dharma Devi was suffering from chickenpox.

8. On the other hand, Mr. V.S. Chauhan, learned Additional Advocate General, has supported the judgment and findings so rendered by the trial Court for the reasons contained therein.

9. Having heard learned counsel for the parties, we are of the considered view that no case for interference is made out in the present appeal.

10. We find from the testimony of Bahadur Singh that father of Dharma Devi was asked to come to Odidhar. We also find from the testimony of Sher Singh (P.W. - 4) that a lady Constable was also called on the spot. But then these facts would, in no manner, probabilize the defence of the accused or render the prosecution version to be false. Significantly, when the accused was produced before the Magistrate, no protest was made. Also, there is no suggestion, much less proof of the custody of the child of Kekti Devi being handed over to the father of Dharma Devi, who also has not been examined as a defence witness. It is not the case of the accused that she and Kekti are close relatives or there was none in the family of Kekti, who could have looked after the child. Also, there is no positive evidence that in fact father of Dharma Devi did come to Odidhar. In fact Bahadur Singh states that till such time he remained on the spot, such persons had not come. It is not that the rain shelter of Jari was located at an isolated place, having no habitation around. Accused admits presence of other persons on the spot, as she states that "every body denied to owe the said bag". Now, who is this ''every body''? who are these persons present on the spot? Why is it that the ladies did not protest against their false implication? Why would police take them to the Police Post? Now, all these questions remain unanswered by the accused. It has not come on record that police harboured any animosity or on suspicion had taken them to the Police Post.

11. It is true that the accused is only to probabilize his defence and not prove his case beyond reasonable doubt. But then, in the instant case, there is nothing on record to this effect.

12. In Dharampal Singh Vs. State of Punjab, (2010) 10 JT 513 : (2010) 10 SCALE 229 : (2010) 9 SCC 608 : (2010) 10 SCR 1160 : (2010) AIRSCW 6828 , the Hon''ble Supreme Court of India, held that the initial burden of proof of possession lies on prosecution and once it is discharged legal burden would shift on the accused. Standard of proof expected from the prosecution is to prove possession beyond all reasonable doubt but what is required to prove innocence by the accused would be preponderance of probability. Once the plea of the accused is found probable, discharge of initial burden by the prosecution will not nail him with offence. Offences under the Act being more serious in nature higher degree of proof is required to convict an accused. It needs no emphasis that the expression possession is not capable of precise and completely logical definition of universal application in context of all the statutes. Possession is a polymorphous word and cannot be uniformly applied, it assumes different colour in different context. In the context of Section 18/20 of the Act once possession is established, the accused who claims that it was not a conscious possession has to establish it because it is within his special knowledge. Section 54 of the Act raises presumption from possession of illicit articles.

13. Act creates legal fiction and presumes the person in possession of illicit articles to have committed the offence in case he fails to account for the possession satisfactorily. Possession is a mental state and Section 35 of the Act gives statutory recognition to culpable mental state. It includes knowledge of fact. The possession, therefore, has to be understood in the context thereof and when tested on this anvil, we find that the accused has not been able to account for satisfactorily the possession of Charas. Once possession is established, the Court can presume that the accused had culpable mental state and had committed the offence.

14. In somewhat similar facts, the Hon''ble Supreme Court of India, had the occasion to consider this question in Madan Lal and Another Vs. State of Himachal Pradesh, AIR 2003 SC 3642 : (2003) CriLJ 3868 : (2004) 1 CTC 381 : (2003) 89 ECC 241 : (2003) 6 SCALE 483 : (2003) 7 SCC 465 : (2003) 2 SCR 716 Supp , wherein it has been held that once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles. (See also: Dehal Singh Vs. State of Himachal Pradesh, AIR 2010 SC 3594 : (2010) CriLJ 4715 : (2010) 9 JT 265 : (2010) 9 SCC 85 : (2010) 10 SCR 598 .

15. In the present case, not only possession but conscious possession has been established. It has not been shown by the accused that the possession was not conscious in the logical legal backdrop of Sections 35 and 54 of the Act.

16. It is a settled position of law that the prosecution has to prove its case beyond reasonable doubt and what is "beyond reasonable doubt", it has been explained by the Hon''ble Supreme Court of India in Shivaji Sahabrao Bobade and Another Vs. State of Maharashtra, AIR 1973 SC 2622 : (1973) CriLJ 1783 : (1973) 2 SCC 793 : (1973) SCC(Cri) 1033 : (1974) 1 SCR 489 has held that:-

"6. Even at this stage we may remind ourselves of a necessary social perspectives in criminal cases which suffers from insufficient forensic appreciation. The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand especial emphasis in the contemporary contest of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles of golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then breaks down and lose credibility with the community. The evil of acquitting a guilty person light heartedly as a learned author [Glanville Williams in ''Proof of Guilt''] has sapiently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicted ''persons'' and more severe punishment of those who are found guilty. Thus, too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with Viscount Simon, that "a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent ... ..." In short, our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents. We have adopted these cautions in analysing the evidence and appraising the soundness of the contrary conclusions reached by the Courts below. Certainly, in the last analysis reasonable doubts must operate to the advantage of the appellant. In India the law has been laid down on these times long ago."

[Emphasis supplied]

17. In the instant case, no independent witness has been associated by the police party, while carrying out the search and seizure operations. Thus, the prosecution case rests on the testimony of police officials.

18. It is a settled proposition of law that sole testimony of police official, which if otherwise is reliable, trustworthy, cogent and duly corroborated by other witnesses or admissible evidence, cannot be discarded only on the ground that he is a police official and may be interested in the success of the case. However, the rule of prudence demands that the Court should be conscious before putting blind reliance upon the testimonies of police officials. Thus, if the testimony of the police official is consistent and credible in nature and satisfies the trust of truthfulness, there is no bar to base conviction upon such testimony of the police officials.

19. In Sama Alana Abdulla Vs. State of Gujarat, AIR 1996 SC 569 : AIR 1995 SC 569 : (1995) 6 SCALE 407 : (1996) 1 SCC 427 : (1995) 5 SCR 279 Supp , the Court held that the evidence of police witnesses cannot be rejected on the ground that they are police witnesses and were members of the raiding party. Also, the Court held that evidence of police officer cannot be discarded merely because he is police official, in absence of hostility to the accused. In the present case also, there is no enmity between the Investigating Officer and the accused. Had there been any intention of the Investigating Officer to plant the contraband substance on the accused, then he might have planted small quantity of Charas.

20. It was further held by the Hon''ble Supreme Court of India in Ravindra Shantram Sawant Vs. State of Maharashtra, AIR 2002 SC 2461 : (2002) CriLJ 3239 : (2002) 2 Crimes 442 : (2002) 1 JT 190 Supp : (2002) 4 SCALE 501 : (2002) 5 SCC 604 : (2002) 3 SCR 881 : (2002) 2 UJ 1056 : (2002) AIRSCW 2711 : (2002) 4 Supreme 408 , that Court need not seek corroboration of evidence of the police officer who conducted search. But then, given facts have to be kept in mind.

21. In Girija Prasad (dead) by LRs v. State of M.P., (2007) 3 SC (Cri) 475, the Hon''ble Supreme Court of India, held that the presumption that people act honestly apply to police officer also.

22. We find the prosecution to have established its case, beyond reasonable doubt, through the testimonies of police officials Parveen Kumar (P.W. - 1), Bahadur Singh (P.W. - 2) and Om Parkash (P.W. - 3), who conducted the search and seizure operations. Their testimonies are clear, consistent, cogent and the witnesses reliable. There is nothing in their testimonies, which would render their testimonies to be doubtful or the witnesses to be unreliable or not worthy of credence.

23. Om Parkash (P.W. - 3) states that on 29.3.2009, he alongwith Bahadur Singh and Parveen Kumar was present at Odidhar. At about 3.30 p.m., a lady came from Malana side, carrying a pithu (rucksack) on her back. Seeing the police party, who were in uniform, the lady turned back and tried to throw away the bag which she was carrying. She was apprehended and on query disclosed her name to be Dharma Devi, so identified as the accused in the Court. He clarifies that the place was lonely, and no independent witness was either available or could be associated. As such, he associated his companions. Since he suspected the accused to have carried some contraband substance, in her bag, after informing her of her statutory rights and obtaining her consent (Ext. 1/D) for searching the bag, he searched the same. He states that from the bag (Ext. P-3) on which ''North Face'' was written, six packets of khaki colour were recovered, which contained Charas. Contraband substance was weighed and found to be 2.5 kgs. Two samples, each weighing 25 grams (Ext. P-2), were drawn and sealed with four seal impression of seal ''H'' and remaining bulk parcel (Ext. P-2) was sealed with six seals of the very same seal impression. Samples of the seal were taken on a piece of cloth (Ex. P.W. - 1/E). NCB form (Ex. P.W. - 3/A) was filled up in triplicate. Ruka (Ex. P.W. - 3/B) was sent through Bahadur Singh to the Police Station for registration of the F.I.R. He completed proceedings on the spot and sent Special Report (Ex. P.W. - 3/E) to the Deputy Superintendent of Police. At the Police Station, he deposited the contraband substance with the SHO, who resealed the same with four seals of impression ''T''. Despite extensive cross-examination, we do not find his testimony to have been shattered or rendered doubtful, in any manner. In fact, his version stands duly corroborated by Parveen Kumar and Bahadur Singh, on material points.

24. There is some variation and discrepancy with regard to the time within which accused was apprehended. But then, this fact alone would not render the witnesses to be unreliable, their testimonies unbelievable or the prosecution case to be doubtful. In our considered view, presence of the accused, recovery of the contraband substance from her conscious possession, stands proved, beyond reasonable doubt.

25. In Radha Mohan Singh @ Lal Saheb and Others Vs. State of U.P., AIR 2006 SC 951 : (2006) CriLJ 1121 : (2006) 2 CTC 762 : (2006) 1 JT 428 : (2006) 1 SCALE 369 : (2006) 2 SCC 450 : (2006) 1 SCR 519 : (2006) 1 UJ 370 : (2006) AIRSCW 421 : (2006) 1 Supreme 371 , the Court further held that it is for the Judge to consider in each case whether the witness stands thoroughly discredited or can be still believed in regard to a part of his evidence. If the evidence is not completely shaken, the Court may after considering the evidence as to whole with due care and caution except in the light of other evidence on the record. That part of his evidence which is found creditworthy and act upon it, the testimony of such witness may not be rejected out rightly. Also in State of Rajasthan Vs. Bhawani and Another, AIR 2003 SC 4230 : (2003) CriLJ 3857 : (2003) 5 SCALE 595 : (2003) 7 SCC 291 : (2003) 1 SCR 996 Supp : (2003) 2 UJ 1417 : (2003) AIRSCW 3953 : (2003) 5 Supreme 287 , the Court held that corroboration is rule of prudence for satisfying test of reliability. That part of witness''s evidence found believable can be used for the purpose of corroborating the evidence of other witnesses. Evidence which is not shaken by the cross-examination cannot be brushed aside.

26. There can be no dispute with the proposition that benefit of every doubt has to go to the accused, but before such a benefit can be extended, the doubt must be reasonable and not each and every doubt, which may arise. Explaining this principle, the Hon''ble Supreme Court of India, in State of U.P. Vs. Krishna Gopal and Another, AIR 1988 SC 2154 : (1989) CriLJ 288 : (1988) 3 Crimes 195 : (1988) 3 JT 544 : (1988) 2 SCALE 632 : (1988) 4 SCC 302 : (1988) 2 SCR 391 Supp , has held that:

"Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an over emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused person arising from the evidence, or from the lack of it, as opposed to mere vague apprehension. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case."

(Emphasis supplied).

27. As pointed out by the Hon''ble Supreme Court of India in State of Punjab Vs. Baldev Singh, etc. etc., AIR 1999 SC 2378 : (1999) CriLJ 3672 : (1999) 157 CTR 3 : (1999) 65 ECC 695 : (1999) ECR 545 : (1999) 81 FLR 303 : (1999) 4 JT 595 : (1999) 1 LLJ 254 : (1994) 4 SCALE 144 : (1999) AIRSCW 2494 : (1999) 6 Supreme 159 , drug abuse is a social malady. While drug addiction casts into the vitals of the society, drug trafficking not only casts into the vitals of the economy of a country, but illicit money generated by drug trafficking is often used for illicit activities including encouragement of terrorism. It has acquired the dimensions of an epidemic, affects the economic policies of the State, corrupts the system and is detrimental to the future of a country. Reference in the said decision has also been made to certain Conventions of the United Nations against illicit trafficking in Narcotic Drugs, which the Government of India has ratified. It is, therefore, absolutely imperative that those who indulge in these kind of nefarious activities should not go scot-free on technical pleas which come handy to their advantage.

28. Applying the test laid down by the Hon''ble apex Court in the present case, there is nothing on record, which can be called as a reasonable doubt. On the other hand, the prosecution evidence has been corroborated in material particulars both by ocular version and documentary proof, including the report(s) of the chemical analyst.

29. We find the prosecution case to have been established even by way of link evidence. SHO Prem Dass is categorical in his deposition that on the basis of ruka, so received at the Police Station, F.I.R. was registered and file handed over to Bahadur Singh. Also, when Om Parkash produced the case property before him, he resealed the same with seal impression ''T''. Necessary entries were made in the NCB form (Ext. P.W. - 3/A) and the case property deposited, alongwith the NCB form, in the Malkhana. Till such time, the case property remained with him, it was not tampered with.

30. Testimony of Roop Singh (P.W. - 6), MHC, is also to the effect that entry of the contraband substance was made in the Malkhana Register (Ex. P.W. - 6/A) and the sealed samples were handed over by him, alongwith the Road Certificate (Ex. P.W. - 6/B) to be taken to the Forensic Science Laboratory. Om Parkash (P.W. - 7), after depositing the case property at the Laboratory, deposited the receipt, copy of which is Ex. P.W. - 7/C. Version of this witness also stands corroborated by Om Parkash (P.W. - 3), both of whom have also deposed that so long as the property remained in their possession, it was not tampered with. The witnesses have deposed truthfully. Their depositions are clear, consistent and there is nothing which would render the same to be doubtful. Bulk parcel was also deposited with the Forensic Science Laboratory for analysis. HC Ram Krishan (P.W. - 9), who was posted as MHC at the relevant time, sent the same through Tek Singh (P.W. - 10) to the Laboratory. Even they have deposed that so long as the parcel remained with them, it was kept in safe custody and not tampered with.

31. Reports of the Forensic Science Laboratory (Ex. PA and PB) reveal the contraband substance, so recovered from conscious possession of the accused, to be charas.

32. It be also observed that before leaving the Police Post, entry of departure was made by the police party, which stands proved by the prosecution witnesses. Thus, genesis of the prosecution story also cannot be said to be false.

33. Also, we find that Special Report (Ex. P.W. - 5/A) was promptly sent to the superior Officer, which fact is evident from the testimony of HC Harbans Kumar (P.W. - 5).

34. So, in view of the above discussion, evidence in hand and the law laid down by the Hon''ble Supreme Court of India, the prosecution has successfully proved beyond all reasonable doubt that accused was in conscious and exclusive possession of Charas.

35. From the material placed on record, it stands established by the prosecution witnesses that the accused is guilty of having committed the offence charged for. There is sufficient, convincing, cogent and reliable evidence on record to this effect. The circumstances stand conclusively proved by unbroken chain of unimpeachable testimony of the prosecution witnesses. The guilt of the accused stands proved beyond reasonable doubt to the hilt. The chain of events stand conclusively established and lead only to one conclusion, i.e. guilt of the accused. Circumstances when cumulatively considered fully establish completion of chain of events, indicating the guilt of the accused and no other hypothesis other than the same. It cannot be said that accused is innocent or not guilty or that she has been falsely implicated or that his defence is probable or that the evidence led by the prosecution is inconsistent, unreliable, untrustworthy and unbelievable. It cannot be said that the version narrated by the witnesses in Court is in a parrot-like manner and hence is to be disbelieved.

36. In our considered view, prosecution has been able to establish guilt of the accused, beyond reasonable doubt, by leading clear, cogent, convincing and reliable piece of evidence.

37. For all the aforesaid reasons, we find no reason to interfere with the judgment passed by the trial Court. The Court has fully appreciated the evidence placed on record by the parties. There is no illegality, irregularity, perversity in correct and/or in complete appreciation of the material so placed on record by the parties. Hence, the appeal is dismissed.

Appeal stands disposed of, so also pending application(s), if any.