IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. A No. 124 of 2000. Date of decision: 16th December, 2010. State of H.P. …. Appellant. Versus Ranjit Ram …. Respondent Coram: The Hon’ble Mr. Justice R.B. Misra, J. The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1yes For the appellant : Mr. R.K. Sharma, Sr. Addl. Advocate General with Mr. Rajinder Dogra, Addl. Advocate General. For the respondent : Respondent in person with Mr. Anup Chitkara, Advocate. Surinder Singh, J (Oral) Respondent was acquitted by the learned trial Court for the offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 in short ‘the Act’ allegedly keeping in possession 400 grams of charas. State felt aggrieved by the acquittal, as such filed the present appeal. 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. - 2 - 2. In short, the prosecution case, as emerges from the evidence on record, can be stated thus. On 28.2.1998 PW11 Head Constable Khem Chand was on duty in Police Post Manikaran. Around 3.30 p.m., he received a telephonic message that a boy wearing black and green jacket was on his way to Manikaran from the side of village Phulga, carrying black and red colour bag, who was suspected carrying charas. (ii) The above information was entered into the Rapat Rojnamcha Ext. PB and wireless message Ext. PA was also flashed to the Superintendent of Police, Kullu by PW11 aforesaid. (iii) Thereafter Head Constable Khem Chand aforesaid accompanied by Home Guard PW8 Chander Kiran reached near ‘Ram Temple’ Manikaran and included Chabi Lal and PW10 Charan Singh Pradhan of the Panchayat in the raiding party. (iv) The raiding party around 3.45 p.m. proceeded towards village Shanana. They noticed the respondent coming on foot with his bag. His identify was asked and Head Constable Khem Chand informed him that he entertained - 3 - suspicion that he was carrying charas with him and gave him an option in writing Ext. PW10/B. On this, respondent opted to be searched by the police party present there. To this effect, he made his endorsement under his signatures on the same document, which is Ext. PW10/B. (v) Head Constable Khem Chand rendered himself to be searched by the respondent in the presence of the witnesses but nothing incriminating was found in his possession and to this effect memo Ext. PW11/A was prepared. (vi) Thereafter said Police Officer PW11 Khem Chand conducted the search of the bag of the respondent which contained 400 grams of charas in a plastic bag. Out of which two samples of 25 grams each were separated and sealed with seal impression ‘A’. Remaining bulk was also sealed with the same seal. Seal sample was taken on Ext. PW11/B, and after its use was handed over to witness Chabi Lal. (vii) NCB forms in triplicate were also filled in at the spot. Respondent was arrested and the grounds - 4 - of arrest Ext. PW10/F were recorded and apprised to him. (viii) Ruka Ext. PE was sent through constable Chander Kiran for the registration of the case which culminated into FIR Ext. PF. (ix) Site plan Ext. PW11/C of the place of recovery was also prepared. PW11 Constable Khem Chand aforesaid produced the case property before the SHO along with NCB forms and seal impressions. After re-sealing it by the SHO, it was deposited in the Malkhana with MHC. (x) Next day, a special report was sent through constable Inder Singh No. 102 to the Superintendent of Police concerned. (xi) One of the samples was sent for its analysis by PW7 MHC Sato Kumar to CTL Kandaghat through constable Lal Chand vide RC No. 55/21. After depositing its sample and the NCB forms etc. , he obtained receipt on the RC Ext. PG and handed over it back to the MHC on reaching the police Station. (xii) Sample tested positive for charas in the laboratory, as per report Ext. PH and the challan - 5 - was prepared and presented in the Court for trial of the respondent. 3. Respondent was accordingly charge sheeted for the offence aforesaid to which he pleaded not guilty and claimed trial. 4. Prosecution examined its witnesses and respondent was also examined under Section 313 of the Code of Criminal Procedure. His case was denial simplicitor. He did not lead any evidence in defence and at the end of the trial, he was acquitted on the ground that the independent witnesses turned hostile and even PW8 Chander Kiran Home Guard did not support the prosecution case and further that there was non- compliance of Section 50 of the Act. 5. Shri R.K. Sharma, learned Senior Additional Advocate General vehemently argued that though the independent witnesses turned hostile, yet they have admitted their signatures on the documents and further that official witnesses are categoric in their statements with respect to the alleged recovery from the respondent. There is absolutely no contradiction and that the prosecution case has been corroborated by independent witness PW10 Charan Singh in material - 6 - particulars. He further ventilated that recovery of the charas was made from the bag of the respondent to which he was carrying and it was not the case of personal search, thus Section 50 of the Act is not attracted. 6. Shri Anup Chitkara learned counsel for the respondent while supporting the impugned judgment of acquittal forcefully argued that there is absolutely nothing on record to show that the recovery of the alleged article was from the bag of the respondent, as alleged. He further contended that there is also no mention about the size of the bag which could have even been kept hidden and fastened to the body and to conduct the search, the compliance of Section 50 of the Act was thus mandatory. He further ventilated that other contents of the bag are not disclosed. Therefore, the prosecution story lacks probity. He also tried to impress us by making submissions that the independent witnesses did not support the case of the prosecution and the official witnesses stood contradicted, therefore, the statements of the official witnesses cannot be treated to be a gospel truth and confidence inspiring. - 7 - 7. We have critically examined the rival contentions and have re-appraised the evidence on record but we are not at all convinced by the arguments advanced by the learned counsel for the respondent. We also do not find that the impugned judgment of acquittal is legally and factually sustainable. 8. It was a case of prior information. PW11 H. C. Khem Chand had received a secret information telephonically to which he jotted down in the Rojnamcha, as testified by him during the trial and then he had sent the wireless message Ext. PA to the Superintendent of Police, Kullu. PW1 Constable Ramesh Chand wireless Operator, posted in Police Post Manikaran, stated that he had transmitted the message Ext. PA to the Superintendent of Police, Kullu. This fact is also corroborated by PW2 LHC Chhwang Dorje of Police Post Manikaran. Thus, in our considered opinion the provision of Section 42 (2) of the Act stands fully satisfied. 9. The evidence on record reveals that PW11 H. C. Khem Chand had given an option in writing to the respondent to satisfy the compliance of Section 50 of the Act, as aforesaid to which the respondent exercised and opted to be searched by the police. When his bag was - 8 - checked-up, charas was recovered from the said bag which is a ruck-sack as mentioned in the seizure memo Ext. PW10/C. Said ruck-sack also contained other articles like grey colour jacket, towel and a cap, as mentioned in the memo Ext. PW10/D and on his personal search, nine items were taken into possession vide memo Ext. PW10/E which, on his request were returned lateron to him by the learned trial Court. 10. As already stated above, recovery of the charas is from the bag (ruck-sack) containing other four items as indicated in the said memo and this fact is also corroborated by PW10 Charan Singh an independent witness. He stated that he was sitting in ‘Ram Temple’ and Head constable told him that he was entertaining suspicion on some person and he was asked to accompany him. Police noticed the respondent to whom he identified during the proceedings in the court, starting searching his belongings and recovered a polythene envelop containing 400 grams charas and sample were taken on the spot and remaining quantity was separated and sealed with seal impression ‘K’ at the spot and their signatures were obtained. He also identified his signatures on seizure memo Ext. PW10/A and - 9 - on the parcel of charas Ext. P1. He categorically stated that police had searched the bag to which the respondent was having. But however, he did not support the prosecution regarding giving the option by the police under Section 50 of the Act but not on other points. In the cross examination, he could not be shattered with respect to the recovery of charas from the respondent. Another witness Chabi Lal was not examined. 11. PW8 Chander Kiran Home Guard constable denied having accompanied Head Constable Khem Chand and also having given any statement under Section 161 of the Code of Criminal Procedure to the police but his statement to this effect appears to be incorrect in the light of the Rapat Rojnamcha Ext. PB wherein his departure along with Head constable Khem Chand has been reflected. It also finds mention in the Ruka Ext. PE. According to Head Constable Khem Chand, ruka was sent through him to the Police Station for registration of the case and this reference is also there in the FIR Ext. PF. Therefore, the aforesaid documents which are prepared in the discharge of official duties and copy whereof were sent to the higher authorities, stand contradicted. If these averments were incorrect, said - 10 - Home Guard constable should have represented to the higher authorities to which he never did. Therefore, his statement to the effect that he was not accompanying Head Constable Khem Chand is incorrect. Otherwise also, we do not find any discrepancy in the statement of the Head Constable Khem Chand. Also independent witness PW10 Charan Singh has lent corroboration to the statement of PW11 Head Constable Khem Chand in material particulars. Learned counsel for the respondent tried to assail his statement to the effect that he admitted that 3 ½ yeas ago he was a police witness in one case but he denied that he was cited a witness in several excise cases and cases against foreigners under the Act. This suggestion though put is denied and in our considered opinion, it cannot be said that said witness is a stock witness or a procured witness by the police. He was also not found to have any malice against the respondent. In the totality of circumstances, recovery of the offensive matter stands proved from the respondent and inference of guilt, in absence of reasonable explanation from the respondent has to be essentially drawn in view of Section 54 of the Act. - 11 - 12. Further, we find that the respondent has failed to attribute any malice or ill-will to the police in framing him in a false case. 13. The learned counsel also tried to point out the alleged fabrication by the police against the respondent by referring to the report of analysis wherein the facsimiles of the seal is pasted on the NCB forms. But this argument is noticed only for rejection. There is neither any irregularity nor illegality in pasting facsimiles of the seal on the NCB forms, which vitiates trial. Rather the facsimile of the seal, as per report of the analysis corresponded to the seal of the sample sent for analysis through constable Lal Chand which was analyzed in the laboratory. Thus, from the time of its recovery till the sample was analyzed in the laboratory, link is complete. 14. The question of compliance of Section 50 of the Act, against the above background facts is not attracted at all in the given circumstances. In fact, the question of compliance or non-compliance of Section 50 of the Act is relevant only where search of a person is involved and said Section is not applicable nor attracted where no search of a person is involved. Search and recovery from a bag , brief case, container etc., does not come within - 12 - the ambit of Section 50 of the Act. In this behalf we put our reliance on the judgment of the apex Court rendered in Ajmer Singh versus State of Haryana JT 2010 (2) SC 175. 15. Therefore, on the re-examination of the aforesaid evidence, we find that the judgment of acquittal passed by the learned trial Court is perverse and the prosecution was successful in proving the case with respect to recovery of 400 grams contraband from the bag (ruck- sack) of the respondent. 16. Since the quantity of resin of cannabis plant in the instant case was found 39.5% W.W. in the total recovered stuff which comes around 158 grams of the total substance, which is less than the “commercial quantity” but more than “small quantity” as specified vide Notification No. S.O. 1055 (E) dated 19.10.2001, issued by the Central Government, thus in terms of weight in charas content, respondent is liable to be convicted under Section 20 (B) of the Act and punished for keeping in possession the quantity less than the “commercial quantity” and more than the “small quantity”. Hence the offence allegedly committed by the respondent is punishable with rigorous imprisonment which may extend - 13 - to 10 years and a fine which may extend to Rs. 1 lacs. Thus applying the ratio of Dharampal Versus State with connected matters Latest HLJ 2007 (HP) 827 and Rakesh Kumar versus State of H.P. 2008 (2) SLC (28), we hereby convict the respondent for the offence punishable under Section 20 (B) of the Act and sentence him to undergo imprisonment for a period of one and half years and to pay a fine of Rs.20,000/- . In default of payment of fine to further undergo simple imprisonment for three months. 17. Since the respondent already remained in custody w.e.f. 28.2.1998 till 2.12.1999, i.e., more than the sentence awarded, including default in paying fine, therefore, there is no need to commit the respondent present in the Court to prison. The appeal is accordingly disposed of. Send down the record. (R.B. Misra), Judge December 16,2010 (Surinder Singh), (cm) Judge