IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No.43 of 2011 Tilak Dharti S/o Sri Gudda Dharti R/o Village Bhitagaon P.S. Dhartigaon District Rolpa, Nepal ….…..Appellant Versus State of Uttarakhand ……Respondent Mr. Prabhakar Joshi, Advocate, with Mr. B.S.Negi, Advocate, present for the appellant. Mr. T.C.Agarwal, A.G.A. present for the State. Hon’ble Prafulla C. Pant, J. This appeal preferred under Section 374 of Code of Criminal Procedure, 1973 (for short Cr.P.C.), is directed against the judgement and order dated 14.07.2010, passed by Special Judge/Sessions Judge, Champawat, in Special Sessions Trial No. 26 of 2009, whereby accused/appellant Tilak Dharti has been convicted under Section 8/20 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short N.D.P.S Act) and sentenced to rigorous imprisonment for the period of 31/2 years and directed to pay fine of `10,000/-. 2) Heard learned counsel for the parties, and perused the lower court record. 3) Prosecution story in brief is that on 28.08.2009, at about noon PW-1 Sub-Inspector, Prabhat Kumar along with PW-4 Constable Harish Nath, and four other Constables were checking the belongings of the persons coming from the side of Nepal to India near Sharda Barrage. They noticed a person who on seeing a Police 2 personnel, started walking speedily towards Banbasa, to avoid the checking, this made the Police party suspicious about the man. The Policemen chased him and apprehended. On questioning, the apprehended man disclosed his name as Tilak Dharti(accused) son of Gudda Dharti, resident of Village Bhitagaon, District Rolpa in Nepal. He admitted that he was carrying Cannabis (CHARAS) for sale in Shimla. The Policemen attempted to get public witnesses before making the personal search to the man apprehended but no one cooperated. On this the Policemen took search of the accused Tilak Dharti and from the bag it was found that he was carrying Cannabis. The same was weighed with the spring balance at the spot and found that it was 800 gms. A recovery memo (Ex A8) was prepared on the spot and the Cannabis (CHARAS) recovered from the accused was sealed after taking small quantity for analysis. The said sample was also separately sealed. On the basis of the recovery memo, Crime No. 1355 of 2009, was got registered against accused Tilak Dharti on 28.08.2009, at 3:30P.M., at Police Station Banbasa District Champawat, relating to offences punishable under Section 8/18/20 of N.D.P.S. Act. PW-6 Station Officer, Vipin Chandra Sharma, investigated the crime and after completion of investigation, submitted charge sheet (Ex. A15) against the accused Tilak Dharti, for his trial in respect of offences punishable under Section 8/18/20 of N.D.P.S. Act. 4) The Special Judge, on receipt of the charge sheet, after giving necessary copies to the accused, heard the parties on 04.02.2010, and framed charge of offence punishable under Section 8 read with Section 20 of N.D.P.S. Act, against the accused Tilak Dharti, who pleaded not guilty and claimed to be tried. On this prosecution got examined PW-1 Sub-Inspector, Prabhat Kumar, PW.2 Head Constable, Dinesh Chandra Upadhayay, PW-3 Head 3 Constable Raghubir Singh, PW-4 Constable Harish Nath, PW-5 Head Constable Pramod Singh and PW-6 Station Officer, Vipin Chandra Sharma, who investigated the crime. Oral and documentary evidence was put to accused under Section 313 of Cr.P.C., in reply to which he alleged that he was innocent. However, no evidence in defence was adduced. The report received from Forensic Science Laboratory, Dehradun, confirmed that the sample taken from the item recovered from the accused contained Cannabis (CHARAS). After hearing the parties, the trial court found accused Tilak Dharti, guilty of charge of offence punishable under Section 8/20 of N.D.P.S. Act, 1985. Thereafter, the parties were heard on sentence, and the convict (Tilak Dharti) was sentenced to rigorous imprisonment for a period of 31/2 years and directed to pay a fine of `10,000. Aggrieved by said judgment and order dated 14.07.2010, passed by Special Judge/Sessions Judge, Champawat in Special Sessions Trial No. 26 of 2009, this appeal is filed by the convict. 5) PW-1 Sub-Inspector, Prabhat Kumar, and PW-4 Constable Harish Nath have stated on oath that on 28.08.2009, they along with constables Sanjay Dosad, Sunil Kumar, Pooja Pal and Reenu Rani were checking the persons coming from the side of Nepal in the Indian territory. The two witnesses have further submitted that at about noon a person was seen coming, who on seeing the Police personnel attempted to avoid the checking and started going speedily towards Banbasa. He was apprehended by Policemen. On questioning, he disclosed his name Tilak Dharti, and further admitted that he was carrying Cannabis. It is stated by the witnesses that the accused was told that he could get his search taken in the presence of a Magistrate or a Gazetted Officer but he told that since he is caught, his search may be made without taking to Magistrate or Gazetted Officer. Said document (Ex. A-2) 4 is on the record. Aforesaid two witnesses further told that on search of Tilak Dharti, Cannabis was being found transported in a bag. PW-1 Sub-Inspector, Prabhat Kumar, and PW-4 Constable Harish Nath, further told that when the item was weighed, it was found that it was 800 gms. The recovery memo was prepared and Cannabis was sealed after taking sample out of it. The sample was also sealed. 6) PW-6 Vipin Chandra Sharma, who investigated the crime has stated that the sample was sent for examination to Forensic Laboratory. PW-3 Head Constable Raghubir Singh, has stated that before examination the sample was kept in sealed condition and the same was not tampered with. Forensic Laboratory report dated 10.12.2009 on the record shows that the sample contained Cannabis (Charas). 7) Sri Prabhakar Joshi, learned counsel for the appellant submitted that the quantity of Cannabis said to have been recovered from the appellant is only 800gms, which is less than minimum commercial quantity. Attention of this Court is drawn to Clause (B) and Clause (b) of Section 20, and it is pleaded that the sentence awarded by the trial court may be reduced to the period under gone. It is further pointed out that the accused/appellant Tilak Dharti is a poor man who is in jail since his arrest, and now he has completed almost two years. 8) In the above circumstances, this appeal is partly allowed. 9) The conviction of the accused/appellant Tilak Dharti under Section 8 read with Section 20 of N.D.P.S. Act, is affirmed, but the sentence awarded by the trial court is reduced to rigorous imprisonment for a period of two years, and fine of Rs. 5000/- in default of payment of which he shall undergo imprisonment for a further period of three months. With this modification in the 5 sentence, the appeal stands disposed of. Let a copy of this judgment be sent to the Superintendent of Jail concerned. (Prafulla C. Pant, J.) 18.08.2011 JM