TMI Blog2015 (8) TMI 1226X X X X Extracts X X X X X X X X Extracts X X X X ..... yone else tampered, therewith – Trial Court rightly observed that since appellant is native of Himachal Pradesh, police could not involve him falsely in case in hand by bringing him from his State – Considering that appellant has been in jail from date of his arrest and has already spent 9 years in jail, sentence reduced to 10 years instead of 12 years – Order of conviction modified – Decided against appellant. - CRA No. D-2-DB of 2006 - - - Dated:- 3-9-2013 - S.P. BANGARH S.S. SARON, JJ. Mr. KBS Mann, Advocate for the appellant. Mr. H.S. Sran, Addl. Advocate General, Haryana for the respondent. ORDER S.P. BANGARH, J The case of the prosecution is that on 16.01.2003, ASI Jai Kishan alongwith other police officials was present near the gate of new grain market, bus stand, Samalkha in connection with patrolling and checking of crime, where appellant carrying a polythene bag in his right hand came from the side of bus stand, Samalkha who on seeing the police party retreated and started swiftly walking towards the bus stand. He was intercepted by the police party on the basis of suspicion. Since, ASI Jai Kishan suspected that the appellant was carrying s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... boratory by MHC Om Parkash through Constable Ramesh Kumar and latter vide its report Ex.PX declared the contents of the sample parcel to be of 'charas'. After completion of investigation, Station House Officer of Police Station Samalkha instituted police report under Section 173 Cr.P.C before the learned Special Judge, Panipat to the effect that it appeared that the appellant had committed an offence punishable under Section 20 of the NDPS Act. On presentation of police report, copies of documents, as required under Section 207 Cr.P.C. were furnished to the appellant and charge under Section 20 of the NDPS Act was framed against the appellant, whereto, latter pleaded not guilty and claimed trial. Consequently, prosecution evidence was summoned. At the trial, the prosecution examined, as many as, 07 witnesses who testified as under: - PW-1 Constable Naresh Kumar tendered in evidence his affidavit Ex.PA. PW-2 HC Om Parkash tendered in evidence his affidavit Ex.PB. Cross-examination of both the witnesses was deferred. Instead of tendering them for cross-examination, they were examined as PW-3 and PW-4 respectively, and they tendered in evidence their fresh affid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the prosecution, pleaded innocence and false implication in this case. Appellant was called upon to enter in defence and he examined Constable Sumer Singh, who brought the register No.19 of Police Station Samalkha and proved photocopy, thereof, Ex.DA. He also brought register No.21 and proved photocopy, thereof, Ex.DB. He also brought the departure register and proved photocopy, thereof, Ex.DC. Later the appellant closed his defence evidence. After hearing both the sides, as also, after perusing the evidence and documents on record, the learned trial Court vide impugned judgment of conviction dated 21.11.2005, convicted the appellant for commission of offence punishable under Sections 20 of the NDPS Act and vide impugned order of sentence dated 22.11.2005, sentenced him to undergo rigorous imprisonment for a period of 12 years and to pay a fine of `1,50,000/- and in default of payment of fine to further undergo rigorous imprisonment for a period of two years for commission of offence punishable under Section 20 of the NDPS Act. Aggrieved, thereagainst, the appellant, who was accused before the learned trial Court has come up in this appeal with prayer for acceptance, there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re drawn as sample and both the parcels were sealed and seized vide recovery memo Ex.PH. Both these witnesses were subjected to searching cross-examination by the learned counsel for the appellant before the learned trial Court, but long cross-examination failed to elicit anything worth the name, which could possibly cause any dent in their testimonies. Both, PW-5 (HC Sham Lal) and PW-7 (ASI Jai Kishan) are not alleged to have any animus or hostility against the appellant prior to the incident. Therefore, no motive can be ascribed to them to testify falsely in this case. There is no material contradiction in their testimonies. Indeed, the learned counsel for the appellant failed to point to any major discrepancy, that could cause any dent in the prosecution version. Otherwise, human memory is fallible, that erodes with the passage of time, therefore, after the passage of time, some discrepancies are likely to occur, even in the testimony of truthful witnesses. So, the contention raised by the learned counsel for the appellant that the testimonies of PW-5 (HC Sham Lal) and PW-7 (ASI Jai Kishan) are discrepant, is not made out from the record. As such the contention in this regard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RCR (Criminal) 622; passed by the Hon'ble Supreme Court of India, wherein, it was held that a bag, briefcase or any such article or container etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body or a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton etc. of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance, it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word person occurring in Section 50 of the NDPS Act. It was also held that the provisions of Section 50 will come into play only in the case of personal search of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case property remained in their possession, neither they nor anyone else tampered, therewith. These witnesses were also partly examined, as PW-1 and PW-2 respectively and their crossexamination were deferred and when they appeared again in the Court, instead of tendering them for cross-examination, learned Public Prosecutor examined them as PW-3 and PW-4 respectively. This inadvertent error has not caused any prejudice to the appellant. There is no flaw in their affidavits Ex.PC and Ex.PD. It follows that the sample parcel of this case was deposited in the FSL in an intact condition and the latter vide its report Ex.PX declared the contents, thereof, to be of charas. Link evidence in this case, is thus, complete. It, thus, follows that the contents of 2 kgs of contraband that was recovered from the appellant by PW-5 (HC Sham Lal) and PW-7 (ASI Jai Kishan) in presence of other police officials contained in a bag carried by the appellant in his right hand were charas. It constitutes commercial quantity being more than 1 kg in weight. It is the case of the appellant that he has been falsely implicated in this case. It is no doubt that he examined Constable Sumer Singh as DW-1 in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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