HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A.No.: 174 of 2006 Reserved on: 10.9.2008 Decided on: 16.9.2008 Budhi Singh @ Raju ………Appellant. Versus State of Himachal Pradesh ………Respondent. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? Yes. For appellant: Mr.Ravinder Thakur, Advocate. For respondent: Mr. Mr.Rajesh Mandhotra, Deputy Advocate General. Per V.K. Ahuja, J: This is an appeal filed by the appellant against the judgment of the court of learned Sessions Judge, Kullu, dated 28.2.2006, vide which the appellant was held guilty under Section 20 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the NDSP Act) and was sentenced to undergo imprisonment for 10 years and pay a fine of Rs.1.00 lac. In default of payment of fine, the appellant was to further undergo imprisonment for four years. Briefly stated the facts of the case are that on 6.2.2005, PW-9 ASI Ringchen Gialchen, I.O., alongwith PW-1 H.C. Bhagat Ram, PW-2 HHC Amar Singh and H.C. Chaman Lal, was present at Police Check Post, Bajaura for patrolling. At 4.30 p.m., one bus of HRTC came, bound from Manali to Delhi, which was stopped by the Investigating Officer PW-9, for checking. Apart from ______________________ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. the Driver and the Conductor of the bus, there were 3 passengers including two males and one female. The luggage of the passengers was checked by the police party and the appellant was found sitting on seat No.15, with a bag in his lap. PW-9 ASI Ringchen Gialchen asked the name of the appellant, took him to a nearby tent alongwith the bag which was found containing charas, which, on weighment, was found to be 1.050 kg. Out of the recovered charas, two samples of 25 grams each were taken separately and were sealed and the remaining charas was also sealed separately with seal and these were taken in possession in presence of both the police officials accompanying PW-9 ASI Ringchen Gialchen. A Ruka was prepared and sent to the Police Station. PW-9 ASI Ringchen Gialchen prepared the site plan, took into possession the bus ticket and completed the formalities at the spot and thereafter deposited the case property with the SHO at Police Station, who resealed the case property with his own seal and it was deposited with the MHC Jia Lal, PW-8. On completion of the investigation, the challan was filed before the learned trial Court, who tried the appellant, as detailed above, leading to his conviction. We have heard the learned counsel for the parties and have gone through the record of the case. The main submissions made by the learned counsel for the appellant were on the point that the Investigation Officer PW-9 had not associated any independent witness before searching the bag of the appellant, though the appellant was apprehended at Check Post where there are shops and persons were available, including the Driver and Conductor of the bus, who were also not associated as witnesses. Another plea raised by the learned counsel for the appellant was that the charas was recovered in the shape of chapatis and sticks, which should have been separately weighed and samples should have been taken from chapatis and sticks separately and once no samples were taken separately, the charas recovered cannot be linked with the appellant. Coming to the first plea, the Investigating Officer PW-9 ASI Ringchen Gialchen has stated that he did not ask any of the passengers to become witness because they appeared to be of Nepal. He further stated that he had asked the Driver and the Conductor of the bus to become witnesses but they refused. He admitted that there is a tea stall, office of Company Commander of HHG and other shops located near the Police Check Post at Bajaura. However, he has clearly stated that the buses were stopped for routine checking. In regard to the non-joining of independent witnesses, PW-1 H .C. Bhagat Ram has admitted that there is a Forest Check Post, but he gave the distance in between the Police Check Post and Forest Check Post as 200/300 metres. He stated that villages are scattered nearby over one kilometre. He has also stated that after entering inside the bus, they had asked the Driver and the Conductor of the bus to become witnesses, who refused. He stated that he had told this fact to the Investigating Officer in his statement under Section 161 Cr.P.C., but it was not recorded therein and he was confronted with his statement in this regard. He also stated that two other passengers, appearing like Nepalis, were asked to become witnesses but they showed their helplessness and their presence could not have been procured even if they had been made witnesses. PW-2 HHC Amar Singh has stated that at the spot there is one workshop and tea stall. The statement of the Investigating Officer as PW-9 and the police officials accompanying him that they asked the Driver and the Conductor of the bus was sought to be contradicted by the statement of PW-7 Satish Kumar, Conductor of the bus, who had been examined to prove the bus tickets recovered from the possession of the accused. He stated that the Driver and he were not asked by the police to become witnesses. To the similar effect is the statement of the alleged Driver of the bus Surinder Singh, who was examined as DW-1. The appellant in his defence had not produced any record from HRTC to show that DW-1 Surinder Singh was the Driver of the said bus at the relevant time. However, they have no occasion to support the prosecution story and there is nothing on record to show as to why the statement of the Investigating Officer and that of the police officials accompanying the police party should not be relied upon in which they have stated that when they had asked the Driver and the Conductor of the bus to become witnesses, but they refused. In regard to the passengers, it is clear from the evidence that there was one female passenger and one male passenger who were going towards Delhi in the bus bound to Delhi from Manali and according to the prosecution story, the male passenger appeared to be Nepali. It may not be correct to state as to whether the said passenger was Nepali or not, but it is common knowledge that the passengers bound for a long distance like Delhi from District Kullu will not like to be associated since they will have to be at the spot for some more time and they will be reluctant to appear again as witnesses. The fact that the Driver and the Conductor are normally not prepared to become witnesses in such cases was stated by DW-1 Surinder Singh, the alleged Driver himself in his cross examination. There is nothing on the record to show as to whether the persons were present in the tea stall or at the Forest Check Post or not and since the accused was apprehended suddenly, the Investigating Officer only tried to associate the Driver and Conductor of the bus, who had only witnessed the fact that the accused was apprehended with a bag in his lap. In case some witnesses had been associated after the accused had been apprehended with a bag in his lap, they would not have been able to state that the bag was lying in the lap of the accused or not. It is true that the raid was conducted at 4.30 p.m. and persons may have been available nearby, but once the accused was apprehended suddenly and his presence at the spot stands established from the evidence, it cannot be said that non-joining of independent witnesses, in the facts and circumstances of the case, was fatal to the case of the prosecution. It is in the statement of the Investigating Officer PW-9 and two witnesses that the bag was lying in the lap of the accused and DW-1 Surinder Singh has also admitted this fact very clearly that the accused was sitting in the middle of the bus and was having a bag which was kept by him in his lap and he was taken out of the bus by the police alongwith the bag. Once the presence of the accused at the spot and the recovery of the bag from his lap stands proved from the prosecution evidence, including the admission made by DW-1 Surinder Singh, it is clear that non-joining of the independent witnesses cannot be said to be fatal. The fact that the accused was found in the bus also finds corroboration from the bus ticket proved in evidence by the statement of the Conductor of the bus, who has been examined as PW-7. Apart from the above, the prosecution had also examined PW-3 HHC Mohar Dass, who has proved the Rapat Rojnamcha regarding the departure of the police party from the Police Post, Bhuntar. The statement of PW-4 Badri Singh, the then SHO, proves that the case property was produced before him and he re-sealed the case property and also appended the seal impression on the NCB Form. The statement of PW-5 HHC Kashmi Ram, Reader to Dy.S.P., shows that the special report Ext.PW-5/C was received in this case, which was produced before the Dy.S.P. by him. The case property had been taken to CTL, Kandaghat by PW-6 Constable Sunder Lal and the case property had been deposited with PW-8 HC Jia Lal, who has proved the fact that the case property was duly deposited with him by the SHO after re-sealing it. Coming to the plea that a separate sample should have been taken from the chapatis and sticks, form of charas recovered from the possession of the accused, PW-2 HHC Amar Singh has clearly stated that the sample was taken from one charas piece. PW-1 HC Bhagat Ram has also stated that the sample was taken from the recovered charas, which was weighing 1.050 kg. and the Investigating Officer PW-9 has also stated that the sample was taken from whole of the charas after mixing the same. In these circumstances, when the sample had been taken after mixing the charas, it was not necessary that the chapatis and sticks should have been broken into pieces and then sample should have been taken to prove that it was a homogenous sample. It was the shape of the charas about which the witnesses have stated but since samples were taken from the bulk and were proved to be charas, as per the report of the Chemical Examiner Ext.PW-4/E, the recovered charas can be linked with the accused and it can be said that the charas was recovered from his possession. A perusal of this report shows that the seal impression tallied with the seal used at the time of recovery and the seals were intact. From the above discussion of the evidence, it is very much clear that there are no material contradictions in the statements of the official witnesses and there are no infirmities in the prosecution story. The statement of the Investigating Officer PW-9 and two other police officials cannot be disbelieved merely because they are official witnesses, particularly, when there are no suggestions made to these witnesses that they had any reason to falsely implicate the accused whose presence at the spot and recovery of bag from his lap stand proved from the evidence. Therefore, we are inclined to hold that the findings of the learned trial Court holding the appellant guilty under Section 20 of the NDPC Act are based upon correct appreciation of evidence and there are no missing links and the learned trial Court had rightly held the appellant guilty under Section 20 of the NDPS Act. The other submission made by the learned counsel for the appellant was that keeping in view the decision of the Division Bench of this Court in Dharam Pal’s case, the quantity of Charas recovered cannot be said to be 1 Kg. and as such the appellant was entitled to punishment provided for recovery of small quantity only in view of the reasoning given by the Division Bench of this Court. Reliance was placed upon a decision of Division Bench of this Court in Dharam Pal Vs. State of H.P., Latest HLJ 2007 (HP) 827. A perusal of this judgment shows that a question was raised before the Division Bench that in case the percentage of resin found in the content of Charas is less than the recovered Charas, the quantity of resin found can be said to be Charas and not the whole quantity recovered from possession of the accused. Accordingly, it was held that the sentence has to be imposed keeping in view the quantity of resin found in the total quantity of Charas recovered from the possession of the accused. A perusal of the said judgment of the Division Bench shows that a similar plea was raised before the Bench and in that case the quantity of Charas recovered was 1.600 grams, but the chemical examiner on the analysis of representative of the sample of the stuff found that it contained only 28.92% resin and accordingly had referred to the term cannabis, charas, ganja etc. The Division Bench finally concluded that since the report of the chemical examiner shows that percentage of resin found was 28.92% and it was silent about the rest of the contents of the stuff which means that the entire quantity of the recovered stuff was not Charas. Applying the decision in the above case in which it was held that recovered stuff was Charas only to the extent of resin content found therein and accordingly, it has been concluded that since in the present case the resin content found was 33.78% approximately 1/3rd, it can be concluded that the Charas recovered from the possession of the accused was 1/3rd of the total substance i.e. about 317 grams only. Therefore, the recovered charas can be said to be more than small quantity but less than commercial quantity since the commercial quantity is 1 Kg. while the small quantity is 100 grams and, therefore, the appellant does not deserve the maximum punishment prescribed under Section 20 of the Act as awarded by the learned trial Court for ten years and fine of Rupees 1.00 lac. Therefore, relying upon the decision of the Division Bench, the sentence imposed deserves to be reduced considerably and keeping in view the fact that the punishment for recovery of commercial quantity of 1 Kg. is prescribed as ten years, we are of the opinion that the appellant is entitled to rigorous imprisonment for a period of three years. Keeping in view the above discussion, the appeal filed by the appellant is partly accepted to this extent that the sentence awarded by the learned trial Court is reduced to rigorous imprisonment for a period of three years. The fine is also reduced to Rs.30,000/- and in default, the appellant shall undergo rigorous imprisonment for a period of six months. The learned trial Court shall take steps that the appellant serves the sentence and fresh jail warrant be issued accordingly by the trial Court. The information regarding deposit of fine shall also be sent to this Court as and when the fine is realized. A copy of the judgment alongwith record be returned to the learned trial Court. (Deepak Gupta), Judge. September 16, 2008. (V.K. Ahuja), (TILAK) Judge.