1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 47 of 2007 Decided on September 9, 2010 _________________________________________________________ Anil Kumar …Appellant. Versus State of H.P. …Respondent. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice V.K. Sharma, Judge. ¹Whether approved for reporting? For the appellant: Mr.Rakesh Manta, Advocate with Mr.Manoj Pathak, Advocate. For the respondent: Mr. Anil Jaswal, Deputy Advocate General with Mr. J.S. Rana, Assistant Advocate General. Justice R.B. Misra,J. ( Oral) Heard learned counsel for the convict / appellant and learned Deputy Advocate General for the respondent / State. 2. The present Criminal Appeal has come up for adjudication under Section 36-B of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'NDPS Act'), in reference to judgment dated 17.8.2005, passed by the Learned Sessions Judge, Mandi, H.P., in Sessions Trial No. 13 of 2004, under Section 20 of the 'NDPS Act', convicting the alleged appellant / convict. 3. The prosecution story is that on 2.12.2003, ASI Madan Lal (PW.8) alongwith H.C. Ramesh Kumar, HHC Bhuri Singh, LHC Vijay Kumar and H.C. Chandermani etc. were on patrol duty, in connection with traffic checking at Hanogi bazar 2 on National Highway No. 21. At about 10.A.M., bus No. 39-6575, New Prem Bus Service, came from Manali side which was on way to Dharamshala, was stopped by the police for routine checkup. Some police officials entered from the front door and the remaining from the rear door and started checking the luggage etc. of the passengers. Sh. Mohan Lal (PW.8) when reached at seat No. 34, convict / appellant Anil Kumar was sitting with a bag within his legs and Chaman Lal (PW.1) was also sitting on seat No. 31. ASI Madan Lal (PW.8) checked the bag Ex.P4 being carried by the convict / appellant and during the course of search, three polythene bags were recovered from the said bag, thereafter, the convict / appellant alongwith the bag was brought out of the bus. The bag contained 3 packets of which two were white in colour, whereas, one was having pink colour, containing charas in the shape of sticks. Madan Lal (PW.8) sent H.C. Chandermani (PW.2) to bring scale and weights, who brought the same from the shop of Mani Ram (PW.4). The charas was weighed in the presence of the witnesses and the conductor, and was found to be 4 Kgs. Thereafter, the police separated two samples of 25 grams each which were put in two separate parcels, sealed with seal 'T' and the remaining charas was again put in the bag and the bag was sealed in a cloth packet with seal 'T'. The parcels of the sample seal and the bulk charas were taken into possession vide memo Ex.PA and Ex.PA/1. Sh. Madan Lal (PW.8) also filled in NCB form Ex.PN on the spot and the samples of seal 'T' were also taken on the said form. 3 The samples taken out from the three packets were sealed with seal impression 'T' on cloth Ex.PB. Thereafter, rukka Ex.PC was prepared and the same was sent through Chandermani (PW.2) to the police station on the basis of which H.C. Raj Kumar (PW.3) recorded the FIR Ex.PD. PW.8 Madan Lal also prepared the spot map Ex.PJ and after fulfilling the formalities charas Ex.P1 to Ex.P3, bag Ex.P4, specimen of the seal and NCB form were produced before Dabe Ram SHO (PW.9) of police Station Aut. Dabe Ram re-sealed the sample parcels with seal 'K'. He has also took the seal impression of seal 'K' on white cloth vide Ex.PO. Thereafter, he handed over the parcels of the samples as well as bulk charas alongwith seizure papers, specimen seal etc. to Raj Kumar for safe custody. H.C. Raj Kumar (PW.3) also entered the case property in Malkhana registered vide Ex.PE. On 3.12.2003, he also sent one parcel of sample alongwith documents and seals 'K' and 'T' etc. to CTL Kandaghat through Constable Sant Ram (PW.5) and he deposited the same at CTL Kandaghat on the same day. After completion of the formal investigation, Special Report Ex.PG was sent through LHC Vijay Kumar (PW.7) who delivered the same to Sh. Satinder Pal, the then, Superintendent of Police, Mandi, who put his initials on the same and handed over the same to H.C. Ajit (PW.6) his Reader. After investigation, convict / appellant was arrested and charged for the aforesaid offence. 4. In order to prove its case, the prosecution has examined as many as nine prosecution witnesses. Whereas, the 4 convict / appellant through his statement under Section 313 of Cr.P.C., has denied the prosecution case. 5. The prosecution story is mainly based on the testimony of independent witness Chaman Lal (PW.1), as well as official witnesses Chandermani (PW.2), Vijay Kumar (PW.7) and Madan Lal (PW.8), who were part of the police party, and have fully supported the prosecution case. 6. PW.1 Chaman Lal has very categorically stated that on 2.12.2003, at about 9.30 A.M., he boarded a bus from Aut for Hanogi which reached Hanogi at about 9.45 / 10.00 A.M. However, bus was stopped by the police for checking and as he was sitting at seat No. 31, his bag was checked. At that time convict / appellant was sitting at seat No.34 having a bag kept on his legs, on search in presence of conductor and driver, convict / appellant disclosed his name as Anil Kumar and during search 4 Kgs of charas was recovered, from which two samples of 25 grams each were separately taken and were put into cloth packets. Thereafter, the sample packets were sealed with seal impression 'T' and remaining charas was also put in a bag sealed with seal impression 'T'. The police filled in one form and thereafter the sample and remaining packets were taken into possession vide memo Ex.PA and another form Ex.PA/1 was filled in over which PW.1 put his signatures. Seal impressions were separately taken on pieces of clothes and one of them is Ex.PB which bears his signatures. In cross-examination PW.1 Chaman Lal has reiterated his version given in examination-in-chief. As per testimony of PW.1 5 in cross-examination, driver was present in the bus but he did not come to the centre of the bus when it was checked. At that time, there were three police officials and he was not aware about their names. Only constable Chandermani was known to PW.1, but he was also not known to him previously. There were 20-25 persons in the bus and nobody was sitting at seat No.30. PW.1 however, being an independent witness and as he was present on the spot at the time of search and seizure by the police officials, has supported the prosecution case in its entirety. 7. PW.2 Head Constable Chandermani, in support of the prosecution case has stated that convict / appellant at the time of checking was sitting at seat No.34 and had kept a bag within his legs. During search, conductor and Chaman Lal (PW.1) were there. The bag contained three packets of which two were white in colour and one pink in colour, from which charas was recovered. PW.2 has brought scale and weights, accordingly charas was measured and found to be 4Kgs, from which 50 grams charas was separated and then it was divided in two parcels of 25 grams each and then these were put into small cloth packets. After due formalities, the convict / appellant was apprehended. In cross-examination, PW.2 has stated that there were 6 police officials in the raiding party. ASI Madan Lal got into the bus from the rear door and other members of raiding party were entered the bus from the front door. At the relevant time, convict / appellant was sitting on the window side of the seat 6 and Chaman Lal (PW.1) was sitting at seat No.31 on two seater bench near the corridor and not on the window. 8. PW.3 H.C. Raj Kumar recorded the FIR. PW.4 Sh.Mani Ram, who had provided scale and weights on asking by one constable. PW.5 Constable Sant Ram has stated that on 3.12.2002 MHC Raj Kumar handed over to him one packet sealed with seal impression 'K' for depositing the same to CTL Kandaghat alongwith specimen seals, parcel sample and other documents, which he deposited at CTL Kandaghat on the same day. PW.6 HC Ajit had received the Special Report of the case at about 12.10 P.M. 9. PW.7 LHC Vijay Kumar, accompanied ASI Madan Lal etc. in traffic checking and has fully supported the prosecution case. PW.7 has stated that the convict / appellant was sitting in three seater bench on window side. PW.7 has supported the prosecution case regarding search, recovery and in making out the official formalities. 10. PW.8 ASI Madan lal, alongwith other police officials, while on traffic checking, on 2.12.2003, at about 10.00 A.M., checked bus No. HP.39-6575 coming from Manali side, wherein convict / appellant was sitting at seat No.34. On checking the bag of the convict / appellant, which was kept within his legs, polythene packets were taken out and charas was recovered and after making official formalities, convict / appellant was apprehended. In view of the testimony of PW.8 made in cross- examination, there were seven persons in the patrolling party of 7 which 5 were police officials. As per testimony of PW.8, he alongwith Chandermani entered the bus from the front door and rest entered the bus from the rear door. They took 5 to 7 minutes for checking seat Nos.1 to 10, 10 minutes for checking seat Nos. 10-20 and thereafter 10 minutes from seat Nos. 20-30. There were no passengers between seat Nos. 31 to 34. PW.8 has further stated that seat No.34 was in almost centre of the bus and the convict / appellant was sitting in the window side. PW.8 has fully supported the prosecution case. 11. PW.9 SHO Dabe Ram before whom two parcels of sample of charas sealed with seal 'T' at 6 places of this case and another parcel of remaining charas sealed with seal 'T' at 12 places alongwith NCB form, search seizure form and specimen seal. PW.9 also took specimen impression on pieces of cloth, one of which was Ex.PO. Thereafter, he handed over the parcel of remaining charas alongwith papers and specimen seal to MHC Raj Kumar for safe custody. 12. On analysis of the prosecution witnesses and materials on record, we notice that police party associated one independent witness, namely, Chaman Lal (PW.1), has searched the passengers sitting in the said bus and found the convict / appellant sitting at seat No.34 carrying a bag, from which 4 Kgs of charas was recovered. The search was by way of routine checking. The recovery of charas in question was not made consequence to the prior information, as such, the compliance of Section 42 of the 'NDPS Act' was not required. The contraband goods, namely, charas was recovered from the bag 8 being carried by the convict / appellant, as such, it was not on personal search, therefore, the mandatory requirement of Section 50 of the 'NDPS Act' was also not necessary. More so, in view of the law laid down by Hon'ble Supreme Court in State of H.P. Versus Pawan Kumar, AIR 2005 Supreme Court Weekly 2154, whereby it was settled that provision of Section 50 of the 'NDPS Act' would be attracted only when the search is to be made of the person and the said section would not apply to the search of vehicle, container, bag or premises etc. We also notice that PW.1 Chaman Lal, an independent witness, has stated very elaborately, consistently and coherently reiterating the same version in cross-examination also as has been noted by learned Sessions Judge, that there was neither enmity of Chaman Lal (PW.1) with the convict / appellant nor there was any motive as to why this witness would falsely implicate the convict / appellant in such a serious offence. 13. No doubt, there appears to be minor contradictions regarding version of PW.1 Chaman Lal, who has stated in cross- examination that there were three police officials were present at the time of search, whereas, in view of the testimony of PW.2 Chandermani and PW.8 Madan Lal, 6 police officials and 5 police officials respectively, were present at the time of search. However, such minor contradiction will not go to the root of the case and cannot make the case of the prosecution fatal. In respect of contradiction regarding sitting of accused and other passengers, the contradiction, if any, as has been noted by learned Sessions Judge, is also not vital which could make the 9 prosecution case fatal. 14. In reference to the arguments advanced by learned counsel for the convict / appellant that the contraband goods were not recovered from the conscious possession of the convict / appellant, as the convict / appellant while sitting in the bus was not supposed to keep his bag on his legs and prosecution has not been able to link the events, by indicating that the charas so recovered from the convict / appellant, was kept in conscious possession of the convict / appellant. For this purpose, learned counsel for the convict / appellant has relied upon a decision of this Court (D.B.) in Suresh Chand Versus State of Himachal Pradesh, Shimla Law Cases 2003 (1) 212 as well as the decision of Bihari Lal Versus State of Rajasthan, 2002 Criminal Law Journal 1716. In our considered view and the facts and circumstances of the case, the cases relied upon above, are different with respect to the present case. Whereas, in the present case, the recovery of charas was made from the bag being carried by the convict / appellant, which could in all possibilities, found in conscious possession of the convict / appellant. 15. Learned Deputy Advocate General has referred and relied upon several decisions e.g., Dimple Gupta (Minor) versus Rajiv Gupta, AIR 2008 SC 239, Kulwinder Singh versus State of Punjab, AIR 2007 SC 2868, Kalegura Padma Rao & Another versus State of A.P., AIR 2007 SC 1299, State of Punjab versus Hakam Singh, (2005) 7 SCC 408, Krishna Mochi & Others versus State of Bihar, (2002) 6 SCC 81, Leela Ram (Dead) through Duli 10 Chand versus State of Haryana & Another, (1999) 9 SCC 525 and has submitted that since in the facts and circumstances, there is no material discrepancies or contradictions in the testimony of a witness, his evidence cannot be disbelieved merely on the basis of some normal, natural or minor contradictions, inconsistencies, exaggerations, embellishments etc. 16. We have carefully gone through the contents of the impugned judgment and we have also carefully examined the prosecution witnesses as well as materials on record, we notice that the prosecution has successfully been proved its case beyond reasonable doubt and minor contradictions and inconsistencies do not make the prosecution case doubtful, as has been submitted on behalf of the learned Deputy Advocate General for the respondent-State. It has also been argued by the learned counsel for the convict / appellant that though as per the case of the prosecution contraband goods were recovered from polythene packets but the samples drawn out of the same were not represented or homogeneous in nature. It being so, taking into consideration CTL report Ex.PP, the resin contents was to the extent of 21.89 %, the quantity of contraband well below the commercial quantity as has been held by Hon'ble Supreme Court in Gaunter Edwin Kircher Versus State of Goa, Secretariat Panji, Goa, AIR 1993 SC 1456. However, on perusal of Ex.PC, from which it is apparent that the contents of three polythene packets were put together and it was only thereafter that the sample were drawn. In such a situation, it cannot be 11 said that samples were not either representative or homogeneous. It has also been argued on behalf of the convict / appellant that several passengers were carrying bags while sitting in the bus and the alleged recovery was made from the bag in question cannot be said to be in conscious possession of the convict / appellant, in view of the decision of Hon'ble Supreme Court in Ismail Khan Aiyub Khan Pathan Versus State of Gujrat, 2000 (10) SCC 257. 17. On analysis of the prosecution witnesses especially PW.1 Sh.Chaman Lal, it is apparent that the convict / appellant was at the relevant time while sitting at seat No.34 in the bus, has kept the bag on his legs. Similar statement was also given by PW.2 Head Constable Chandermani, though with the little deviation, he has stated that the convict / appellant had kept the bag within his legs. Keeping of bag with convict / appellant has also been supported by PW.8 ASI Madan Lal, as such, the assertion made on behalf of the convict / appellant, that the bag in question from which the contraband goods were recovered was not in his conscious possession, is baseless. 18. In view of the aforesaid analysis as well as facts and circumstances, we are of the considered view that there is no scope of any interference in the impugned judgment, as the prosecution has successfully been able to bring home the guilt to the accused for the offence under Section 20 of the 'NDPS Act' sentence awarded in the facts and circumstances is 12 adequate, as indicated above. Accordingly, the appeal, being devoid of any merit, is dismissed. (R.B. Misra) Judge September 9, 2010 (V.K. Sharma) (Purohit) Judge