Whether reporters of the local papers may be allowed to see the judgment? IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Criminal Appeal No.73 of 2010. Date of decision: December 14,2010. Suraj Giri. ….Appellant. Versus State of Himachal Pradesh. … Respondent. Coram The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting? Yes. For the appellant : Mr. Ajay Sharma, Advocate. For the respondent : Mr. J.S. Guleria, Asstt. Advocate General. Surinder Singh, Judge (oral): 1. The challenge in this appeal is to the judgment dated 9.12.2009 of conviction and sentence, passed in Sessions trial No.25 of 2009, against the appellant, for the offence punishable under Section 20 (B) of the Narcotic Drugs and Psychotropic Substances Act, 1985; in short ‘the Act’, whereby the appellant was sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of `25,000/- with default clause, allegedly for possessing non-commercial quantity of Charas. - 2 - 2. In short, the prosecution story can be stated thus. On 16.2.2009, PW10 HC Prem Pal was in the Special Investigating Unit, Mandi. He alongwith PW2 HHC Padam Singh, HHC Ramesh Chand and Balbir Singh (LHC) was on patrolling duty in connection with detection of excise and narcotic cases at ‘Bihuli-Sauli Khud’ road. (ii) At about 10 PM, they reached near water source and noticed a ‘Baba’ smoking the cigarette, which was emitting the smell of ‘Bhang’. The police party got suspicious and apprised him the right to be searched before a Gazetted Officer or a Magistrate, but the appellant consented to be searched by the police party. To this effect, a memo Ex.PW2/A was prepared and the appellant made an endorsement in his own hand and under his signature to the effect that he was ready and willing to be searched by the police party, thereafter, police conducted the personal search of the appellant and found a black bag under his armpit and recovered a polythene packet with - 3 - white, red and yellow strips bearing label ‘New Sangam’, which contained cannabis in the shape of balls alongwith two diaries, one book and three identity cards, out of which two pertained to the appellant and one was of Rajinder Giri. There was also one OPD slip. The recovered stuff was 650 grams on its weight-ment. (iii) Two samples from the recovered stuff were separated and each of them were sealed with seal impression ‘D’. The bulk Charas was also sealed with the same seal. The specimen of seal was taken on Ex.PW1/B and its facsimile was put on the NCB forms in triplicate, which was filled-in, on the spot by the Investigating Officer. The seal after its use was handed over to PW2 HHC Padam Singh. (iv) The case property was taken into possession vide memo Ex.PW2/D. Ruqa Ex.PW10/A, was forwarded through constable Balbir Singh for the registration - 4 - of the case to the Police Station, which culminated into FIR Ex.PW1/A. (v) Police prepared site plan Ex.PW10/B. the appellant was arrested and grounds of arrest were informed to him in writing Ex.PW2/E. (vi) Case property was produced before PW1 SHO Hari Pal Saini who resealed each of the parcels with his own seal producing impression ‘N’ and deposited with PW7 MHC Nand Lal in the Malkhana, Police Station Sadar, District Mandi. (vii) On 17.2.2009, a special report Ex.PW3/A was sent to the Deputy Superintendent of Police, Mandi through HHC Ramesh Chand. (viii) One of the samples was sent to the FSL Junga through PW6 HHC Nikka Ram for its analysis under the Road Certificate. On its deposit in the aforesaid Laboratory, he obtained the receipt thereof and deposited it with the MHC Nand Lal. (ix) On analysis, the sample tested positive for Charas as per report Ex.PY. - 5 - (x) On the completion of the investigation, the challan was presented in the court and the appellant was put on trial, for the offence punishable under Section 20 of the Act. (xi) Appellant took up the stand was that it was a false case foisted on him. There were 2-3 ‘Babas’ sitting in the market and ‘Shivratri festival’ was approaching. There were heated arguments with the police and they were taken to the police post. (xii) At the end of trial, disbelieving the version of the appellant, he was convicted under Section 20(B) of the Act, thus based upon the resin percentage in the recovered stuff he was sentenced as aforesaid. 3. Shri Ajay Sharma, learned counsel for the appellant vehemently argued that the police did not join any independent witness during the search of the appellant and there was non- compliance of Section 50 of the Act. Further that there were material contradictions in the statements of the witnesses with respect to the - 6 - place of search and the sentence passed by the learned trial Court was on the higher side. 4. On the other hand, Shri J.S. Guleria, learned Assistant Advocate General supported the impugned judgment of conviction and sentence and submitted that there are no major contradictions, which raise a doubt on the probity of the prosecution case. 5. I have given thoughtful consideration to the rival contentions of the parties and have meticulously examined the evidence on record. 6. PW10 HC Prem Pal fully supported the prosecution case as stated above. He also stated that it was a chance recovery and when the appellant was apprehended, he was smoking a cigarette which was emanating Charas like smell. His identity was asked and given an option for search in writing Ex.PW2/A. The appellant consented to be searched by the police and made endorsement in his own hand and under his signatures, which fact is also borne out from the said document. This fact has also been corroborated by PW2 HHC Padam Singh, who was accompanying him. Therefore, in my opinion, - 7 - there has been no breach of Section 50 of the Act in any manner. The appellant fully well knew and was made aware of the option to which he exercised and no prejudice has been caused to him. 7. Further, evidence of the prosecution is consistent qua the search of the appellant and recovery of Charas from his bag, which was kept by him under his armpit. He (PW10) also testified that out of the recovered stuff, two samples of 25 grams each were separated and sealed into two separate parcels with sealed impression ‘D’. The remaining Charas was also sealed separately with the same seal and he also proved specimen seal impression Ex.PW2/C. He also stated having filled up the NCB forms in triplicate in his own hand. The case property was taken into possession vide seizure memo Ex.PW2/D and one of the memo was supplied to the appellant free of cost. He sent the Ruqa for registration of the case and the appellant was arrested. Site plan was prepared and case property was produced before PW1 SHO Hari Pal Saini, who resealed it with his own seal and deposited with PW7 MHC Nand Lal. - 8 - 8. PW7 MHC Nand Lal testified that the case property alongwith NCB forms in triplicate, copy of the seal and seizure memo entrusted to him, were kept in the Malkhana after making its entry in the Malkhana register. He further testified that one of the parcels was sent alongwith NCB forms in triplicate, copy of the seizure memo and specimen of seal for depositing the same in the FSL Junga for analysis through PW6 HHC Nikka Ram. He proved the extract of the Malkhana Register Ex.PW7/A and copy of RC Ex.PW7/B. He also stated that so long as the case property remained with him, it remained intact. In cross- examination, he could not be shattered at all. 9. PW6 HHC Nikka Ram testified having taken the sample parcel alongwith the aforesaid documents and having deposited in the FSL Junga on 20.2.2009 intact and the receipt was handed over to the MHC. This fact also find mentioned in the analysis report Ex.PY. 10. Ex.PY analysis report depicts the quantity of the resin which was found in the sample on analysis was 40.65 per cent weight in weight thus the total quantity of the resin in the recovered - 9 - stuff comes to 264.225 grams. The learned trial Court on the basis of the judgment of the Division Bench passed by this Court in Dharam Pal vs. State of Himachal Pradesh [Latest HLJ 2007 (HP) 827] rightly convicted and sentenced the appellant, for the offence under Section 20(B) of the Act. 11. On the scrutiny of the evidence, I did not find that there has been any breach of Section 50 of the Act and there is material contradiction in the statements of PW10 HHC Prem Pal and PW2 HHC Padam Singh the official witnesses. Further there was no mandatory requirement to include the independent witness(s) during the personal search and otherwise also the evidence reveals that the place where the appellant was apprehended was a secluded and lonely place. The contention that the appellant was allegedly apprehended near the water source and option to be searched was given to him at the water source, whereas search was conducted near the Bihuli bridge, about 30 meters away from the spot will not in any way cast any doubt on the probity of the prosecution case, more specifically when recovery stands proved and the police had no - 10 - malice against the appellant and the defence raised is not probablised, further testimony of the official witnesses have been found reliable and worth inspiring confidence. The appellant had failed to rebut statutory presumption contained in Section 54 of the Act. 12. For the aforesaid reasons, I did not find any error in the judgment of the learned trial Court and the sentence passed by the learned trial Court is not excessive, as such, the appeal sans merit and is accordingly dismissed. (Surinder Singh) Judge December 14, 2010. *Pds*