CHAMAN LAL Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) THIS appeal has been filed by the appellant against his conviction under Sections 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act, (hereinafter the NDPS Act) sentencing him to undergo rigorous imprisonment for four years and fine of '. 40,000/ - and in default, to undergo simple imprisonment for six months for commission of offence under Section 20 (b) (ii) (B) of NDPC Act. The prosecution case, in brief, is that on 20.12.2010 PW9 ASI Sanjeev Kumar, PW1 ASI Orender Singh, C. Ashwani Kumar, PW2 C. Virender Singh, C. Hamender and HHG Bali Ram were present at Thana chowk in their official vehicle No. HP -33 -6973 being driven by HHG Brahma Nand. They were on routine checking duty when one Indica car bearing registration No. HR -07E - 9373 came from Mandi side which was signaled by them to stop. The accused was sitting by the side of the driver. On seeing the police party, the occupants of this car became frightened. According to the prosecution, the police party smelled charas inside the car. The driver disclosed his name as Tarsem alias Rinku and the appellant as Chaman Lal. Driver Tarsem Lal died during the trial. PW10 Deepak Saklani was associated as a witness with C. Virender Singh. The search was conducted by ASI Sanjeev Kumar, PW9. He found different sounds/echo coming from the door of the car. On checking he found that speaker which was in the left door did not contain anything but when he checked the right door he found that it contained black coloured substance Ext. P7 which was in the form of sticks. This was packed in five different packets in four packets each stick was wrapped in transparent wrapping paper and one packet contained unwrapped sticks. Test was conducted on the spot by ASI Sanjeev Kumar who found that substance seized was charas. Ext. PW1/A memo of identification was prepared which was signed by C. Virender and Deepak Saklani. On weighing, the seized charas was found to be 1.25 Kg. and was kept in the polythene packet from which it was recovered and the packets were put in a cloth parcel. This was sealed with five impressions of seal 'T ' and sample seal was taken on a separate piece of cloth. The impressions of seal are Ext. PW1/B. NCB -1 form Ext. PW6/C was filled in triplicate and seal was handed over to Deepak Saklani PW10 after use. Seizure memo Ext. PW1/C and photographs Ext. PW1/D -1 to Ext. PW1/D -5 were taken by H.C. Orender with his mobile camera; Ruka Ext. PW9/A was prepared which was handed over to PW6 Shakuntla who recorded FIR Ext. PW6/A. On the evidence of the prosecution, the appellant was convicted.

(2.) IT has been urged before me that PW10 Deepak Saklani does not support the case of the prosecution. He has stated in his evidence that he was going home in the month of March, 2010 when naka was set up by police of Jogindernagar. The vehicle in question was stopped and he was asked to put his signatures to confirm the fact that this vehicle has been stopped by the police. He was declared hostile and thereafter cross examined. He denies the incident and states that no investigation/seizure was carried out in his presence. The other evidence is that of police personnel, who were members of the naka party.

(3.) ON the first aspect, all that I need say is that law is now well settled that conviction can be passed on the testimony of a hostile witness. It is not necessary to reject his testimony in toto. This point is well settled in C. Maniappan and others v. State of Tamil Nadu, AIR 2010 SC 3718 in which the Supreme Court holds: - 69. It is settled legal proposition that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross examine him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on a careful scrutiny thereof. (vide Bhagwan Singh v. The State of Haryana, AIR 1976 SC 202; Rabindra Kumar Dey v. State of Orissa, AIR 1977 SC 170; Syad Akbar v. State of Karnataka, AIR 1979 SC 1848; and Khujji @ Surendra Tiwari v. State of Madhya Pradesh, AIR 1991 SC 1853). 70. In State of U.P. v. Ramesh Prasad Misra & Anr., AIR 1996 SC 2766, this Court held that evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon. A similar view has been reiterated by this Court in Balu Sonba Shinde v. State of Maharashtra, (2002) 7 SCC 543: (AIR 2002 SC 3137: 2002 AIR SCW 3619); Gagan Kanojia & Anr. v. State of Punjab, (2006) 13 SCC 516; Radha Mohan Singh @ Lal Saheb & Ors. v. State of U.P., AIR 2006 SC 951: (2006 AIR SCW 421); Sarvesh Naraian Shukla v. Daroga Singh & Ors., AIR 2008 SC 320: (207 AIR SCW 6843); and Subbu Singh v. State, (2009) 6 SCC 462: (2009 AIR SCW 3937). Thus, the law can be summarised to the effect that the evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defence. In the instant case, some of the material witnesses i.e. B. Kamal (PW. 86); and R. Maruthu (PW. 51) turned hostile. Their evidence has been taken into consideration by the courts below strictly in accordance with law. Some omissions, improvements in the evidence of the PWs have been pointed out by the learned counsel for the appellants, but we find them to be very trivial in nature. (at p.3736)