1 IN THE HIGH COURT OF UTTARAKHAND, AT NAINITAL. Criminal Jail Appeal No. 47/2005 Girnar Bharti S/o Mahant Bhagwan Bharti R/o Kanuapura, Thana Chauk, District Varanasi (U.P.) …………. Appellant. Versus The State ……. …….. …. Respondent. Sri J.S. Virk, learned Amicus Curiae for the appellant. Sri Nandan Arya, learned AGA assisted by Sri S.A. Siddiqui, Brief Holder, for the State. Hon’ble Dharam Veer, J: This criminal jail appeal has been preferred by accused/appellant Girnar Bharti against his conviction U/S 8/20 (b)(ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred as ‘N.D.P.S. Act’) dated 1-1-2005, recorded by the Special Judge, Almora, in Special Sessions Trial No. 10/2003, whereby the learned Special Judge awarded Rigorous Imprisonment for five years and a fine of Rs. 25,000/- and in default of payment of fine, to further undergo R.I. for two years. 2- Briefly stated the facts of the case giving rise to this appeal are that on 2.11.2003, while the police party consisting of S.S.I. Uttam Singh, Constable Virendra Singh and other Constables of Police Station, Almora were on patrol duty and they reached near Sikura Bend, the accused was noticed there and seeing the police party, the behaviour of the accused became suspicious, therefore, he was apprehended at 17.05 hour near tri-junction and on being asked, the accused disclosed his name and address and also disclosed that he was in possession of Charas and that was the reason 2 that on seeing the police party he was trying to escape. On such disclosure, the accused was informed about his right of being searched before Gazetted Officer or Magistrate, but the accused expressed his faith in the police party. Thereupon, S.S.I. searched the accused and found a bag hanging on his shoulder containing about half kg. of charas, wrapped in a plastic sheet. The accused could not show any licence for possession of Charas. After recovery of Charas the accused was arrested informing him the ground of his arrest. Sample of 5 grams of Charas was taken from the recovered contraband and sealed at the spot. S.S.I. Uttam Singh also drawn recovery memo, Ext. Ka. 1 and the same was signed by the police personnel and a copy of the said memo was given to the accused and in token of it, the accused also signed the recovery memo. The police party brought the accused along with the recovered Chars to the police station and on the basis of the recovery memo, Ext. Ka.1, Chick F.I.R. Ext. Ka.2 was prepared and a case crime No. 1842/2003, U/S 8/20 of N.D.P.S. Act was registered against the accused at 7.15 P.M. the same day at P.S. Kotwali Almora by Constable Anant Ram Singh. 3- The investigation of the case was entrusted to S.I. Ram Pal Singh of P.S. Kotwali Almora. On the day of the incident itself, i.e. 2.11.2003 the I.O. Recorded the statement of S.S.I. Uttam Singh, Constable Virendra Singh. On 3.11.2003 the I.O. sent the sample of the recovered Charas to Agra for chemical examination. On 4.11.2003, at the pointing out of S.S.I. Uttam Singh, the I.O. prepared the site-plan, Ext. Ka.3 and ultimately after completing the necessary formalities of the investigation, submitted charge sheet, Ext. Ka.5 against 3 the accused and sent it before the Special Court, Almora. 4- The learned Special Judge, took cognizance of the case and framed charge against the accused Girnar Bharti U./S 8/20 (b) of the N.D.P.S. Act. The accused denied the charge and claimed to be tried. 5- The prosecution, in order to prove its case produced four witnesses. P.W. 1, S.S.I. Uttam Singh has made recovery of the charas from the accused. P.W.2, Constable Clerk Anant Ram Singh, has drawn chick F.I.R. and registered the case against the accused at the police station. This witness has proved the chick F.I.R. Ext. Ka.2. P.W.3, Constable Virendra Singh is the member of patrolling party and is a witness of recovery. P.W. 4, S.I. Ram Pal Singh, is the Investigating Officer of the case. This witness has stated about the investigation part and proved site-plan, Ext. Ka.3 and charge sheet, Ext. Ka.5. In this case, chemical Examiner’s report, was obtained and has been proved as Ext. Ka.4. On chemical examination, the recovered contraband article was found Charas by the Chemical Examiner. 6- The accused was examined U/S 313 Cr.P.C. He has denied the prosecution allegation and has alleged that he has been falsely implicated in the case. However, no evidence was adduced by the accused in his defence. 7- The Trial Court, after hearing learned counsel for the parties and perusing the martial on record, found the accused Girnar Bharti guilty of having in illegal possession of ½ Kg. of Charas, and accordingly 4 convicted him U/ S 8/20 (b) (ii) of the N.S.P.S. Act and sentenced him to undergo five years R.I. and to pay a fine of Rs. 25,000/- and in default of payment of fine to further undergo R.I. for two years. 8- The accused feeling aggrieved by his conviction and sentenced passed by the Special Judge, has preferred this criminal jail appeal. 9- I have heard Sri J.S. Virk, learned Amicus Curiae on behalf of the accused/appellant and Sri Nandan Arya, learned A.G.A. and perused the record. 10- Learned Amicus Curiae did not argue the appeal on merit and has only submitted that looking to the facts and circumstances of the case, Lenient view be taken in awarding the sentences to the appellant. According to him half kilogram of Charas has been recovered from the possession of the appellant, which is lesser than the commercial quantity; that the offence committed by the appellant is his first offence and that the Charas was kept by the appellant for his personal use. He therefore, submitted that the sentences awarded to the appellant by the trial court be reduced. 11- On the other hand learned Brief Holder has refuted the submission raised by the learned counsel for the appellant. He has supported the findings recorded by the trial court and submitted that the illegal Charas recovered from the possession of the appellant is not smaller quantity and the sentences awarded to him by the trial court are just and proper and need no interference by this Court. 5 12- In the background of the above submissions of the learned counsel for the parties, it is necessary to scrutinize the prosecution evidence adduced in the instant case. 13- The prosecution case is that on 2.11.2003. while the police party consisting of S.S.I. Uttam Singh Constable Virendra Singh and other Constables of Police Station, Almora were on patrol duty and they reached near Sikura Bend, the accused was noticed there and seeing the police party, the behaviour of the accused became suspicious, therefore, he was apprehended at 17.05 hour near tri-junction and on being asked, the accused disclosed his name and address and also disclosed that he was in possession of Charas and that was the reason that on seeing the police party he was trying to escape. On such disclosure, the accused was informed about his right of being searched before Gazetted Officer or Magistrate, but the accused expressed his faith in the police party. Thereupon, S.S.I. searched the accused and found a bag hanging on his shoulder containing about half kg. Of Charas, wrapped in a plastic sheet. The accused could not show any licence for possession of Charas. After recovery of Charas the accused was arrested informing him the ground of his arrest. Sample of 5 grams of Charas was taken from the recovered contraband article and sealed at the spot. S.S.I. Uttam Singh also drawn recovery memo, Ext. Ka.1 and the same was signed by the police personnel and a copy of the said memo was given to the accused and in token of its, the accused also signed the recover memo. The police party brought the accused along with the recovered Charas to the police station and a case was registered against the accused/appellant U/S 8/20 N.D.P.S. Act. 6 14- The prosecution has examined the police personnel of the raiding party. P.W. 1, S.S.I. Uttam Singh has deposed that on 2.11.2003 in the evening he along with constables Virendra Singh and others was on patrolling duty and when they reached near Sikura Bend, he saw that a person wearing Geruwa Vastra was coming from Vishwanath road and when he saw the ploice personnel, he took a ‘U’ turn and tried to run away. On suspicion the accused was asked to stop, but he tried to run away, therefore, he was chased and at about 40 steps away he was arrested at 7.05 P.M. Accoding to this witness the accused himself disclosed that he was carrying Charas, so he tried to escape. The accused was given the option of being searched before a Magistrate or a Gazetted Officer, but he declined the same, hence he was searched and ½ Kg. Charas (material Ext. 1) was recovered from a green polythene kept inside the bag hanging on the shoulder of the accused. The accused did not have any licence to keep the illegal Charas. This witness further deposed that Rs. 700/- in cash were also recovered from the pocket of the waistcoat put-on by the accused. The recovered Charas was taken into police custody and 5 grams of it was taken as sample and kept inside a match-box and was sealed. Recovery memo, Ext. Ka.1 was prepared by this witness at the spot and the accompanying police personnel signed it. A copy of the memo was also given to the accused and his signatures were also obtained on it as recipient. Thereafter the accused along with the recovered contraband article was brought to Police Station. This witness also deposed that efforts were made to procure the public witnesses but none has come forward to become a witness. Entry in this regard has been made in the recovery memo Ext. ka.1. This 7 witness has been cross-examined at length but nothing material has come out from his cross-examination which may disbelieve his testimony. This witness has denied the suggestion of the defence that the recovery memo was prepared at the police station and the accused has been falsely implicated in the case. 15- Another witness of fact, examined by the prosecution is P.W. 3, Constable Virendra Singh. This witness was among the police party and he has narrated the whole story of recovery of the Charas from the accused. This witness has fully supported the version narrated by P.W. 1, S.S.I. Uttam Singh. This witness has deposed that about ½ kg. Charas was recovered from a green polythene kept inside a bag hanging on the shoulder of the accused, sample was taken from it and kept inside a match-box, which was sealed at the spot. He also deposed that recovery memo, Ext. Ka.1 was prepared by S.S.I. Uttam Singh at the spot. He has also signed the recovery memo and a copy of it was given to the accused and his signatures as recipient were obtained on the recovery memo. Thereafter the accused was arrested and brought to the police station. In his cross-examination this witness has stated that before search of the accused the police personnel did not search each other. He also alleged that passerby were asked to witness the recovery, but they declined. He denied the suggestion that recovery memo was not prepared on the spot the nothing was recovered from the possession of the accused or he is giving false evidence. 16- The evidence of the witnesses of facts, P.W.1, S.S.I. Uttam Singh and P.W. 3, Constable Virendra Singh appear to be quite natural and reliable and from their 8 evidence the recovery of ½ Kg. Charas from the possession of the accused/appellant stands proved. The sample of the Charas was sent to Agra for chemical examination. The report of the Chemical Examiner, Ext.Ka.4 shows that the sample (5 grams Charas) sent to him was found to be Charas. There was no reason for the police to falsely implicate the accused who is resident of a distant district of Varanasi. 17- In the instant case compliance of Section 50 of Narcotic Drugs and Psychotropic Substances Act, 1985 has been properly made. The searching Officer, P.W. 1, Uttam Singh has deposed that the accused was given option of being searched by a Magistrate or a Gazetted Officer but the accused declined, hence he was searched by him in presence of other police personnel. The reasons for making search by S.S.I. Uttam Singh have also been made in the recovery memo, Ext. Ka.1. Further the accused was informed of the ground of his arrest and copy of the recovery memo was handed over to him and in token his signatures were obtained on the recovery memo, Ext. Ka. 1. Both the witnesses of facts P.W. 1, Uttam Singh and P.W. 3, Virendra Singh have deposed that public witnesses were asked to witness the recovery but they declined. This fact has also been mentioned in the recovery memo. Thus, compliance of Section 50 of the N.D.P.S. Act has been made pertaining to the recovery part in the case. 18- Submission was made before the trial Court that seal of the sample was not sent to Chemical Examiner along with the sample. This submission was without basis. The report of the Chemical Examiner, Ext. Ka.4 clearly indicates that sample of seal was also received in his office along with the sample of Charas. Record 9 reveals the recovery was made on 2.11.2003 and the sample was sent to the Chemical Examiner on 3.11.2003 through special messenger. 19- This point was also raised in the trial court that before the search of the bag of the accused, the police personnel present at the place of the recovery, did not search each other and therefore the recovery was doubtful. The submission does not bear any force. It has been the clear cut case of the prosecution that the illegal Charas was recovered from inside the bag of the accused hanged on his shoulder wrapped in a green polythene and there was no any enmity or grudge of the police with the accused, hence if the police personnel present at the place of the recovery, did not seach each other before the search was effected from the accused, the same do not affect the recovery of the Charas made from the accused. 20- P.W.2, Anant Ram Singh is the Constable Clerk who on the basis of recovery memo, prepared chick F.I.R., Ext. Ka.2 and registered the case against the accused on the same day, i.e. 2.11.2003. P.W. 4, S.I. Ram Pal Singh investigated the case. On 2.11.2003 he started the investigation in the case and recorded the statements of S.S.I. Uttam Singh, Constable Virendra Singh and Constable Kushal Pal Singh. On 4.11.2003 on the pointing out of Complainant, S.S.I. Uttam Singh he inspected the place of the occurrence and prepared site-plan, Ext. Ka.3. This witness has deposed that the sample of Charas was sent to Chemical Examiner, Agra through Constable Harendra Singh. After completing the investigation in the case he had submitted charge sheet, Ext. Ka.5 against the accused on 14.12.2003. 10 21- The accused/appellant has been punished U/S 8/20(b)(ii) of the N.D.P.S. Act. Section 20 N.S.P.S. Act makes provision of punishment for contravention of narcotic drugs enumerated U/S. 8 of the Act, which reads as under:- “20. Punishment for contravention in relation to cannabis plant and cannabis- Whoever, in contravention of any provisions of this Act or any rule or order made or condition of licence granted there-under- (a)cultivates any cannabis, plant; or (b) produces, manufactures, possesses, sells, purchases, transports, imports, inter- State, exports inter-State or uses cannabis, shall be punishable- (i) where such contravention relates to clause(a) with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine which may extend to one lakh rupees; and (ii) where such contravention relates to sub- clause (b), (A) and involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine, which may extend to ten thousand rupees, or with both; (B) and involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extent to ten years and with fine which may extend to one lakh rupees; 11 (C) and involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extent to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees; Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees. 22- In the instant case illegal Charas has been recovered from the possession of the appellant which fall within the definition of cannabis. Cannabis has been defined in section 2 (iii)(a) of the Act, which reads as follows: “(iii) “cannabis (hemp)” means- (a) Charas, that is, separated resin, in whatever form, whether crude or purified, obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish.” 23- In the instant case ½ Kg Charas was recovered from the possession of the accused. In the table inserted in the N.D.P.S. Act, the small quantity of cannabis has been given up-to 100 grams and the commercial quantity is given from 1 Kg and above. Therefore, the case of the accused/appellant falls within the category of quantity lesser than commercial quantity but greater than small quantity, punishable U/S 8/20 (b)(ii)(B) of the N.S.P.S. Act. 12 24- From the above discussion, I find that the prosecution has been successful in establishing its case against the accused U/S 8/20 (b)(ii) (B) of the N.D.P.S. Act and I find no irregularity or illegality in the findings recorded by the Special Judge. The accused appellant has rightly been held guilty of the offence U/S 8/20 (b)(ii) of the N.D.P.S. Act for having in illegal possession of Charas for the quantity lesser than commercial quantity but greater than small quantity. 25- So far as the contention of the learned Amicus Curiae with regard to take a lenient view in awarding the sentences to the accused/appellant is concerned, I find force in it. Learned Amicus Curiae has submitted that the accused was found in possession of lesser quantity of Charas; that he was not engaged in illegal profession of the Charas; that it is his first offence and that the accused is more than 41 years of age, serving sentence in the jail, hence sentences awarded to him by the trial court be reduced. Keeping in view the aforesaid facts and circumstances of the case, I think it will be just and proper that the sentence of imprisonment awarded to the accused/appellant be reduced to four years R.I. from five years R.I. and the sentence of imprisonment of two years in default of payment of fine of Rs. 25.000/- be reduced to one year’s R.I. 26- For the reasons recorded above, so far as the appeal on merits is concerned, the same is devoid of any force and as regards the sentences awarded to the accused is concerned, the same has force. Therefore, the appeal is partly allowed. The conviction of the accused/appellant Girnar Bharti U/S 8/20 (b) (ii) N.D.P.S. Act, is upheld. However, the judgment and 13 order dated 1-1-2005, passed by the Special Judge, Almora, in Special Trail No. 10/2003 is modified up-to the extent that the accused/appellant Girnar Bharti shall undergo R.I. for a period of four years instead of five years and shall be liable to pay a fine of Rs. 25,000/- and in default of payment of fine to further undergo R.I. for one year instead of two years R.I. as awarded by the trail Court. 267- Let the record be immediately transmitted to the trail court concerned for compliance. (Dharam Veer, J.) Dated: March 7, 2007. ISB