IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.60 of 2011. Judgment reserved on: 23.11.2011. Decided on: December I, 2011. ___________________________________________________________ Jasvinder Singh @ Sohan. ……..Appellant. Versus State of H.P. ……..Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Mr. Naresh K. Thakur, Advocate. For the respondent : Mr. A.K.Bansal, Addl. Advocate General with Mr. P.M.Negi, Dy. Advocate General. _________________________________________________________ SURINDER SINGH,J : The challenge in the present appeal is to the judgment of conviction and sentence passed by the learned trial Court in Sessions Trial No.2 of 2010, on 15.2.2011, for the offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, in short “the Act”, allegedly for keeping in possession Charas i.e. 27.20 % weight-in-weight resin of Cannabis plant i.e. 489.60 grams Charas in the total recovered stuff of 1.8 K.G. by the appellant, hereinafter referred to as “the accused”, thus sentenced him to Whether reporters of the Local papers are allowed to see the judgment? - 2 - undergo rigorous imprisonment for a period of four years and to pay a fine of `40,000/- and in default of payment of fine to further undergo simple imprisonment for a period of six months. 2. The facts germane to the present appeal emerging from the evidence, can be stated thus. In the year 2003, PW11 ASI Bhim Sain was Incharge of Police Post Pandoh. On 31.10.2009, he alongwith PW9 HC Jagdish Chand, PW2 HHC Nathu Ram and PW1 C. Param Dev were on patrolling in the area of Deoth. When they reached ‘Pandoh Dam’ near ‘Kainchi Mor’ around 5 p.m, they noticed the accused coming from the opposite direction carrying a polythene bag in his right hand. On seeing police, he returned back and started walking briskly. Police entertained suspicion, as such he was apprehended. His identity was asked. Since, it was a lonely and deserted place, no independent witness was available, as such, PW9 HC Jagdish Chand and PW1 C. Param Dev both were associated as the witnesses and the polythene bag which was in the hands of the accused bearing the mark of “Fashion Shoppe”, was checked. It was found to have contained one kilo 800 grams stuff, which was - 3 - put back in the same Polythene bag and the polythene bag was put back in the yellow coloured bag and this bag was wrapped in a piece of cloth and sealed at six places with seal producing the impression of English alphabet “U”. (ii) Police also filled in the NCB forms in triplicate. The facsimile of the sample seal was also put on the NCB forms and sample of seal was taken on a piece of cloth, one of which is Ext.PE. Seal after its use was handed over to the witness PW9 HC Jagdish Chand. Case property was taken into possession vide memo Ext.PB. Their signatures were also obtained on the sample of seal and parcel. (iii) Ruqa Ex.PQ was sent through PW2 HHC Nathu Ram for the registration of the case to the Police Station Mandi, on the basis of which FIR Ext.PH was formally registered. (iv) Police also prepared site plan Ext.PR of the place of alleged recovery and reduced into writing the statements of the witnesses. - 4 - (v) Personal search of the accused was conducted and the memo of personal search Ext.PB was prepared. Thereafter, the accused was arrested and grounds of arrest in writing Ext.PC were informed to him. An intimation of his arrest was given to his cousin as desired by the accused. (vi) Case property was produced before PW 10 Inspector/SHO Hari Pal Saini alongwith sample of seal, NCB forms and case file. (vii) PW10 Inspector Hari Pal Saini resealed the case property with six impressions of seal producing the English alphabet “H”. Its facsimile was also taken on the NCB forms. Resealing memo Ext.PN was prepared. (viii) Case property was handed over to PW8 MHC Nand Lal for its deposit in the Malkhana alongwith NCB forms. He made its necessary entry in the Malkhana register, the abstract of which is Ext.PK. (ix) On 2.11.2009, report Ext.PF was prepared and handed over to Additional Superintendent - 5 - of Police Shri Abhishek at his residence. His affidavit is Ext.PS. (x) On 3.11.2009, the whole of the recovered stuff was sent to the FSL Junga, through PW3 C. Nag Singh alongwith NCB forms and sample seal impressions “U” & “H” alongwith other documents vide R.C. No.194/2009 (Ext.PL). (xi) On 13.11.2009, sealed parcel alongwith report of the analysis Ext.PP was received from FSL Junga, which was brought by PW5 C. Krishan Lal and these articles were deposited in the Malkhana. 3. On completing the challan, it was presented in the Court for the trial of the accused. He was accordingly charge-sheeted, tried, convicted and sentenced as aforesaid for the offence punishable under Section 20(b)(ii)(B) of the Act, for allegedly keeping in his possession 27.20 % weight-in-weight resin of Cannabis plant i.e. 489.60 grams Charas in the recovered stuff of 1.8 Kilograms, which was less than the “commercial quantity” and more than the “small quantity”, on the basis of the judgment rendered by - 6 - the Division bench of this Court in Dharam Pal v. State of H.P. [2007 HLJ 827]. Feeling aggrieved and dissatisfied by the impugned judgment of conviction and sentence, present appeal has been prepared. 4. Shri Naresh K. Thakur, learned counsel for the accused vehemently argued that the raiding party did not chose to join independent witnesses deliberately, which were available in the vicinity. He further pointed out that the statements of the official witnesses are contradictory, rendering the prosecution case doubtful. It is also argued that there has been a non- compliance of the mandatory provision of Section 50 of the Act and the link evidence is also not complete. 5. Contra, Shri A.K.Bansal, learned Additional Advocate General, duly assisted by Shri P.M. Negi, learned Deputy Advocate General supported the impugned judgment of conviction and sentence and ventilated that the alleged offensive quantity was not recovered on the personal search of the accused which requires the compliance of Section 50 of the Act. He further pointed out that the link evidence in this case is complete and statement of official witnesses is worth inspiring confidence. Though there is no - 7 - requirement to join the independent witnesses, but however, there is un-assailed testimony of the Investigating Officer that it was a secluded place and no independent witness was available at the time of the recovery, therefore non-joining of independent witnesses is not fatal. He further argued that there are no grounds to interfere the conviction and sentence passed by the learned trial Court. 6. I have given my thoughtful consideration to the rival contentions of the parties and have carefully and cautiously reappraised the evidence on record. 7. PW11 ASI Bhim Sain corroborated the prosecution case verbatim. The whole of the recovered stuff which was seized on the spot was sealed with seal producing the impression of English alphabet “U” and this stuff was being carried by the accused in polythene bag held in his hand. Since the recovery is not from the personal search of the accused and if any container or bag is held in the hand that would not attract the provision of Section 50 of the Act. Further, the Supreme Court in State v. Makhan Chand [2004 (3) SCC 453] also observed that if an accused person, on seeing a patrolling police party starts running, which - 8 - excites the suspicion of the police party, as a result of which, he is apprehended and searched, even then the question of compliance with the safeguards prescribed under Section 50 of the Act would not arise at all. Therefore, the contention of the learned counsel for the accused that there has been non-compliance of aforesaid provision is worth rejecting. 8. Further, PW11 ASI Bhim Sain categorically stated that where the accused was apprehended was a lonely and secluded place and no independent witness was available, thus, he associated PW9 HC Jagdish Chand and PW2 HHC Nathu Ram as the witnesses to the recovery. He categorically stated that in presence of the aforesaid persons, the polythene bag mark “Fashion Shoppe” was checked. It was found containing stick like black-coloured substance, kept in a polythene. The whole recovered stuff was put back in the polythene bag, the polythene bag was put back in the yellow coloured bag and this bag was also wrapped into a piece of cloth and then sealed with seal impression “U” at six places and the NCB forms in triplicate were filled in on the spot. PW9 HC Jagdish Chand and PW2 HHC Nathu Ram both have supported - 9 - his version. PW11 ASI Bhim Sain has also identified the said parcel during the trial of the case in the Court. In cross-examination, he admitted that he did not send any police official to call for any of independent witness, as there was no person to associate on the spot, thus no efforts were made. 9. It is not imperative to join an independent witness after the recovery is made from an open and public place. Thus the testimony of the official witnesses is of a prime importance. If it is worth inspiring confidence, it can safely be acted upon. 10. To attack the statements of the official witnesses, learned counsel for the accused pointed out that their statements cannot be relied upon as there are material contradictions. For that he led me through the statement of PW1 C. Param Dev wherein he stated that the police party was present on the spot on 30.10.2009, whereas the case of the prosecution has been that the alleged recovery was effected on 31.10.2009. Further PW1 C. Param Dev stated that the distance between Pandoh Dam and Kainchi Mor is 3-4 K.M. whereas it was only 2 K.M. The learned counsel also pointed out that PW2 HHC Nathu Ram stated that - 10 - the accused was spotted by the police at a distance of 10 feet, whereas PW11 ASI Bhim Sain stated that the accused was at a distance of 3-4 feet. Further he stated that he was first to sign the seizure memo, whereas PW9 HC Jagdish Chand stated that he signed prior to Nathu Ram. 11. It is correct that PW1 C. Param Dev stated in the opening line of his examination-in-chief that he was present on the spot on 30.10.2009, whereas the prosecution case is that he apprehended the accused on 31.10.2009. This appears either to be a typographic mistake or that the witness failed to recapitulate the actual date of recovery, whereas the prosecution case throughout is that the alleged recovery was effected from the accused on 31.10.2009. Even the Ruqa which was prepared on the spot after the recovery and sent for the registration of the FIR on 31.10.2009. The FIR was also lodged on the same day in the Police Station, therefore, either slip of tongue or failure to recapitulate the date can not be stated to be fatal to the prosecution case. Insofar as the other contradictions are concerned, these are very minor in nature, which hardly affects the merits of the case. The - 11 - prosecution witnesses aforesaid were grilled in cross- examination quite at length and such type of contradictions are bound to appear as human memory cannot work like a video-recorder reproducing the facts in the same manner, as observed by the Supreme Court in Bharwada Bhoginbhai Hirji Bhai v. State of Gujarat [1983 (3) SCC 217]. 12. As already stated above, the whole case hinges upon the statement of the official witnesses. It is well settled that testimonies of the police personnel are required to be treated in the same manner as the testimony of any other witness and there is no principle of law that without corroborating by the independent witnesses, their testimonies cannot be relied upon. The presumption that a person acts honestly applies, as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds. However, it will all depend upon the facts and circumstances of each case and the Supreme Court in Karamjit Singh v. State [AIR 2003 SC 3011] expressed that no principle of general application can be laid down. - 12 - 13. It is also well settled that the discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observations should not be given much importance. The errors due to lapse of memory may be given due allowance. The Court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness to reach truth. Thus, the Courts however, should not disbelieve the version of the witnesses, even if they are trustworthy. 14. On reappraisal of the evidence on record, the recovery of the offensive matter stands proved from the envelope to which the accused was carrying in his hand. He did not offer any explanation as to how this envelope had come in his hand nor did he agitate his false implication before the Magistrate within 24 hours of the said recovery. The whole stuff was resealed on the spot by PW10 Inspector/ SHO Hari Pal Saini with his own seal impression “H” and proved the memo of resealing Ex.PN. The entire stuff was deposited by him - 13 - with PW8 MHC Nand Lal and he also made its entry in the Malkhana register and it was taken as it is alongwith sample of seals, NCB forms having facsimiles of seals used and police docket for its examination vide Road Certificate No.194/2009 through PW3 C. Nag Singh and this fact has been testified by him. The aforesaid witness stated that so long the case property remained with him, it was never tampered with. On its examination, it was found to have contained 27.20% weight-in-weight resin of cannabis plant, i.e. Charas as defined under the Act. 15. Further, learned trial Court on the strength of the Division Bench judgment passed by this Court in Dharam Pal’s case supra took into consideration the quantity of the resin in the recovered stuff and rightly came to the conclusion that the accused was found in possession of 489.60 grams of Charas which is more than “small quantity” and less than “commercial quantity”, thus rightly convicted him under Section 20(b)(ii)(B) of the Act. 16. Insofar as the sentence is concerned, it is commensurate to the crime committed by him, which - 14 - requires no interference. As such, the appeal sans merits and is accordingly dismissed. 17. The matter stands disposed of. Send down the record. December 1, 2011. (Surinder Singh), (Pds) Judge.